bluuebunny/crossref_metadata_2025 huggingface dataset:
Organs of the Convention
Authors: Carducci Guido
Published: August 2024

This chapter provides commentary on Articles 4 to 8, referred to as ‘Organs of the Convention’. First, Article 4 considers the General Assembly of States Parties and its structure and organization. Next, the chapter turns to Article 5, focusing this time on an ‘Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage’ (‘the Committee’). Following this is Article 6, which provides for the election and terms of office of States Members of the Committee. Article 7, meanwhile, lays out the functions of the Committee, providing a detailed but not exhaustive list of functions mandatory for the Committee. Finally, this chapter discusses Article 8, which covers the working methods of the Committee.
Final Clauses
Authors: Shyllon Folarin
Published: August 2024

This chapter studies the first set of final clauses of the 2003 ICHC. It first looks at Article 32, which designates the Director-General of UNESCO as the depository of the instruments of ratification, acceptance, and approval of the 2003 Convention. The chapter then briefly discusses Article 33 on accession. Accession, as a means of becoming a party to a treaty, is generally used by States wishing to indicate their consent to be bound by a treaty if, for whatever reason, they are unable to sign it. Finally, Article 34 concerns ratification. Usually the provisions of the treaty declare the date on which the treaty enters into force, often a specified time following its ratification or accession by a fixed number of States.
Federal or Non-Unitary Constitutional Systems
Authors: Boer Ben
Published: August 2024

This chapter canvasses the obligations under the 2003 Convention with respect to federally organised or non-unitary states under Article 35. It also looks at several examples of unitary States that recognise the participation of sub-national entities in identification, management, and awareness-raising of the intangible heritage items within the relevant territorial jurisdiction. Article 35 addresses the obligations for implementation of the Convention for those State Parties that are constituted as federal or non-unitary systems (referred to here under as ‘federal’). Under these types of systems, there is generally a sharing of power between a central or national government and two or more sub-national governments. Federal systems are typically those that have a national or central government, together with two or more constitutionally recognised state or provincial governments, cantons, or equivalent, which have varying degrees of power to legislate and govern.
Basic Concepts of International Humanitarian Law
Authors: Kälin Walter , Künzli Jörg
Published: August 2024

This chapter deals with the obligations of states and other duty bearers under international humanitarian law. As in the case of human rights obligations, it distinguishes between the nature and scope of obligations under international humanitarian law and the different aspects of the scope of application. A model is then developed for examining violations of international humanitarian law. However, before discussing these aspects, it first considers the important principle that humanitarian law, as lex specialis, is applicable only during times of armed conflict. The chapter focuses on those among the provisions of the Geneva Conventions and their Additional Protocols that have a direct bearing on human rights.
Protection of Participation in Political Life
Authors: Kälin Walter , Künzli Jörg
Published: August 2024

This chapter deals with political rights. Political rights, understood in a broad sense, are designed to enable people to communicate as freely as possible with others and to enjoy, as far as possible, equality of opportunity under the law to participate in shaping their social context. The right of free access to all sources of desired information without state interference and the right to form and express one's own opinions are both protected by the freedom of expression. Of equal importance for the formation of opinions and their public manifestation is the right, protected by freedom of assembly, to meet freely with other persons, be it for a private meeting or for a demonstration on public grounds. Lastly, free political activity depends on like-minded people being able to join together in political parties or other organizations. This right is protected by the freedom of association.
Mediation of Cross-Border Commercial Disputes in the European Union
Authors: Vandekerckhove Karen
Published: August 2024

Mediation has received considerable attention at European Union level during the last few years. Several directives have been adopted, especially the general Directive 2008/52 of 21 May 2008 on certain aspects of mediation in civil and commercial matters and the specific instruments focused on consumer matters, Directive 2013/11 on consumer alternative dispute resolution (ADR) and Regulation 524/2013 on consumer online dispute resolution (ODR). EU law further guarantees the enforceability of mediated agreements both within member states and across borders. This regulatory framework has promoted mediation across the member states, triggering and boosting reform at national level. At the same time, questions arise as to the relationship and coherence among the various instruments. A horizontal evaluation covering all the existing instruments in the area of mediation could form the basis for a better coordination between them. While the cross-border enforcement of mediated agreements in commercial matters is already to a great extent regulated among member states, the EU could also play a key role in the development of a legal framework at the international level, by participating in the preparation of a judgment’s convention under the auspices of the Hague Conference on Private International Law and a model law/convention in UNCITRAL.
Codes of Conduct for Commercial and Investment Mediators
Authors: Tirado Joe , Vicente Maravall Elisa
Published: August 2024

To celebrate the fiftieth anniversary of the New York Convention in 2008, many leading international arbitration practitioners and academics wrote a plethora of articles to extol its virtues and success. A few commentators, most notably Albert Jan van den Berg, questioned whether the time had come to modernize the New York Convention. With this in purpose in mind, van der Berg proposed and drafted a new Convention on the International Enforcement of Arbitration Agreements and Awards. While van der Berg’s draft received considerable attention and commentary, it did not gain favor internationally and it was not pursued or adopted. This chapter first revisits van den Berg’s original proposal and the reactions it received at the time. Second, it looks at some of the challenges that international arbitration has faced in the ten years following van der Berg’s controversial proposal. Finally, the chapter consider whether in view of these challenges it is now time to reconsider the adoption of a new New York Convention.
The Title of the Treaty
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about the title of the Treaty on the Prohibition of Nuclear Weapons
Article 8: Meeting of States Parties
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about Article 8 of the Treaty on the Prohibition of Nuclear Weapons, dealing with the meeting of states parties.
Article 10: Amendments
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about Article 10 of the Treaty on the Prohibition of Nuclear Weapons, dealing with Amendments.
Article 16: Reservations
Authors: Casey-Maslen Stuart
Published: August 2024

This section is about Article 16 of the Treaty on the Prohibition of Nuclear Weapons, dealing with Reservations.
The Nature of International Law and the Concept of Sources
Authors: Thirlway Hugh
Published: August 2024

This chapter considers sources of international law. The discussion covers formal and material sources, recognized formal sources, nature and operation of the sources, States and non-State actors, and religious law as a rival or additional source. It also examines whether the theory of sources is still sufficient. It suggests that the dramatis personae of the international legal scene include entities other than States, referred to in the literature as, for example, ‘non-State actors’, and ‘multi-stakeholders’. It is at the least a practical working hypothesis that the law governing relationships with and between these entities, insofar as it varies from that governing inter-State relations, is attributable to the same classic sources.
The Title and the Preamble
Authors: Malloy Tove H
Published: August 2024

This chapter sets out and analyzes the Title and Preamble of the Framework Convention for the Protection of National Minorities (FCNM). The title and the preamble of an international agreement are not decisive in assessing the substance of its provisions but may be relied upon for interpretation purposes. In this instance, it is clear that the FCNM is a binding agreement under international law, subject to the customary international law reflected in the Vienna Convention on the Law of Treaties. The chapter begins with a discussion of four important points that the title of the FCNM adds to the character and the interpretation of the treaty. It then explains the background to the Preamble followed by an analysis of its technical provisions and its more programmatic elements, including the aims and intentions of the drafters. Finally, reference is made to the foundational paragraphs of the Preamble which embed the FCNM in the field of human rights and link it to other instruments.
Article 8
Authors: Machnyikova Zdenka
Published: August 2024

This chapter comments on Article 8 of the Framework Convention for the Protection of National Minorities (FCNM). The true value of Article 8 lies in its promotion of full and effective equality for persons belonging to national minorities in the enjoyment of their religious freedoms. The scope of the measures secured by states parties under this article ranges from horizontal protection directed at peaceful enjoyment of the manifestation of religion or belief, to the facilitation of the right to establish religious institutions and associations in state legislative and administrative practice, to more positive measures that assist religious communities in preserving their religious traditions. Although the states parties provide wide-ranging positive measures, state support is typically mentioned in the context of the general assistance that these states provide to all religious denominations.
Article 10
Authors: de Varennes Fernand
Published: August 2024

This chapter comments on Article 10 of the Framework Convention for the Protection of National Minorities (FCNM). Article 10, which touches upon the use of national minority languages, is significant because it directly addresses what other provisions of the Framework Convention only skirt: the extent to which a state must put aside its own exclusive language preferences and permit, or even require public authorities to use a national minority language in addition to an official one. Article 10 also confronts the often-held belief that a state must be united by a common, or in extreme views, exclusive, working language used by public authorities. This stance has led many states to actively suppress, discourage, or ignore national minority languages and, to this day, some states maintain repressive attitudes and practices premissed on the belief that an official language requires an exclusive linguistic approach.
Article 12
Authors: Thornberry Patrick
Published: August 2024

This chapter comments on Article 12 of the Framework Convention for the Protection of National Minorities (FCNM). Article 12 addresses questions of cultural knowledge in the area of minority rights, the ‘human capital’ necessary to deliver this curriculum, and the right of access to it. Taking measures to foster knowledge of majority and minority cultures is envisaged as a duty of states parties ‘where appropriate’. In the gaze of the Convention, diversity, cultural self-knowledge, and mutuality run together as underpinning motifs of educational processes in the wider ‘social’, as well as the narrower ‘curricular’ senses. It would appear from Convention practice that many states make genuine efforts to promote solidarity through education, but that these efforts are patchy and halting.
Articles 27–32
Authors: Draper Matthew
Published: August 2024

This chapter comments on Articles 27–32 of the Framework Convention for the Protection of National Minorities (FCNM). Article 27 limits signature of the Framework Convention to members of the Council of Europe (CoE), although it does provide a mechanism for non-members to be invited to join. Article 28 sets out the rules governing when the Framework Convention enters into force and, for CoE members that join subsequently, when they become bound by it. Article 29 describes how non-members of the CoE may be invited to join the Framework Convention by the Committee of Ministers (CoM) and when the Framework Convention enters into force for such states. Article 30 allows states to specify the parts of their territories to which the Framework Convention is to apply. Article 31 provides the manner in which states may denounce, or rather withdraw from, the Framework Convention. Finally, Article 32 requires the Secretary-General of the CoE to notify the states of any signatures, accessions, and ratifications, as well as any other state communication relating to the Framework Convention.
War Powers
Authors: Murphy Sean D , Swaine Edward T
Published: August 2024

Chapter 8 explores the enumerated and unenumerated war powers of the federal government and their application to issues as diverse as invasion, humanitarian intervention, the role of the U.N. Security Council, and military commissions. It analyzes the specific powers granted to Congress and the president and those denied to the several states in making war. It discusses the power to resort to armed force in self-defense and otherwise, examining its pre-constitutional origins, expression in the U.S. Constitution, subsequent practice, and contemporary issues; these issues include diverse and competing theses concerning presidential authority. The chapter also reviews the power to conduct armed conflict, analyzing the relevance of international law and the president’s commander-in-chief power, among others. It concludes with a discussion of the power to establish and regulate the military, which includes the power to raise revenue and provide for the common defense; to raise and support the military; to purchase and regulate military installations; and to call forth, organize, arm, and discipline the militia.
Federalism and Foreign Relations
Authors: Murphy Sean D , Swaine Edward T
Published: August 2024

Chapter 9 reviews the implications of the U.S. federal system for U.S. foreign relations law. It discusses the deficiencies identified under the Articles of Confederation, leading to more centralized authority over foreign affairs in the federal government under the U.S. Constitution; it explains that despite this centralization, states nevertheless maintain important roles in U.S. foreign relations. The chapter describes the means by which federal law preempts conflicting state law in the field of foreign relations—through statute, treaty, presidential action, the dormant Foreign Commerce Clause, the dormant foreign affairs power, and customary international law. It concludes with a discussion of a specific role that the U.S. Constitution envisions for states in foreign relations: their ability to conclude “compacts” with foreign states and substate entities.
Freedom of thought, conscience and religion/Liberté de pensée, de conscience et de religion
Authors: Schabas William A
Published: August 2024

This chapter presents Article 9 of the European Convention on Human Rights, which protects freedom of thought, conscience, and religion. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Right to marry/Droit au mariage
Authors: Schabas William A
Published: August 2024

This chapter presents Article 12 of the European Convention on Human Rights, which protects the right to marry. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Registry and rapporteurs/Greffe et rapporteurs
Authors: Schabas William A
Published: August 2024

This chapter presents Article 24 of the European Convention on Human Rights, which requires the European Court of Justice to have a Registry. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Decisions by Chambers on admissibility and merits/Décisions des chambres sur la recevabilité et le fond
Authors: Schabas William A
Published: August 2024

This chapter presents Article 29 of the European Convention on Human Rights, which confirms the role of the seven-judge Chamber as the central adjudicative body of the Court. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Individual applications/Requêtes individuelles
Authors: Schabas William A
Published: August 2024

This chapter presents Article 34 of the European Convention on Human Rights, which allows the Court to receive applications from any person, non-governmental organisation, or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Admissibility criteria/Conditions de recevabilité
Authors: Schabas William A
Published: August 2024

This chapter presents Article 35 of the European Convention on Human Rights, which sets out the criteria for admissibility. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Striking out applications/Radiation
Authors: Schabas William A
Published: August 2024

This chapter presents Article 37 of the European Convention on Human Rights, which allows the Court to strike an application out of its list of cases at any stage of the proceedings. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Expenditure on the Court/Frais de fonctionnement de la Cour
Authors: Schabas William A
Published: August 2024

This chapter presents Article 50 of the European Convention on Human Rights, which states that the Council of Europe will fund the Court. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Exclusion of other means of dispute settlement/Renonciation à d’autres modes de règlement des différends
Authors: Schabas William A
Published: August 2024

This chapter presents Article 55 of the European Convention on Human Rights, which grants the Convention organs a form of monopoly with respect to the interpretation and application of the Convention. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Preamble/Préambule
Authors: Schabas William A
Published: August 2024

This chapter presents the Preamble of Protocol 1 to the European Convention on Human Rights. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Right to free elections/Droit à des élections libres
Authors: Schabas William A
Published: August 2024

This chapter presents article 3 of Protocol 1 to the European Convention on Human Rights, which requires states to ‘organise’ democratic elections. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Relationship to the Convention/Relations avec la Convention
Authors: Schabas William A
Published: August 2024

This chapter presents article 5 of Protocol 1 to the European Convention on Human Rights, which confirms that Protocol No. 1 is an additional protocol. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Relationship to the Convention/Relations avec la Convention
Authors: Schabas William A
Published: August 2024

This chapter presents article 6 of Protocol 6 to the European Convention on Human Rights, which explains that its provisions shall be considered to be additional articles to the Convention. It begins with a short introduction, placing the provision within the context of international human rights law more generally. It then reviews the drafting history or preparatory work of the provision; discusses the interpretation of the text and the legal issues, with references to the case law of the European Court of Human Rights and the European Commission on Human Rights; and concludes with a selective bibliography on the provision.
Territorial application/Application territoriale
Authors: Schabas William A
Published: August 2024

This chapter presents article 2 of Protocol 12 to the European Convention on Human Rights, which deals with the territorial application of the Protocol. It includes a brief commentary.
Relationship to the Convention/Relations avec la Convention
Authors: Schabas William A
Published: August 2024

This chapter presents article 5 of Protocol 13 to the European Convention on Human Rights, which explains that articles 1 to 4 of this Protocol shall be regarded as additional articles to the Convention. It includes a brief commentary.
Signature and ratification/Signature et ratification
Authors: Schabas William A
Published: August 2024

This chapter presents article 6 of Protocol 13 to the European Convention on Human Rights, which deals with the signature and ratification of this Protocol. It includes a brief commentary.
Entry into force/Entrée en vigueur
Authors: Schabas William A
Published: August 2024

This chapter presents article 7 of Protocol 13 to the European Convention on Human Rights, which deals with the entry into force of this Protocol. It includes a brief commentary.
[Depositary functions]
Authors: Schabas William A
Published: August 2024

This chapter presents article 11 of Protocol 16 to the European Convention on Human Rights, which deals with the depositary functions of the Secretary General of the Council of Europe. It includes a brief commentary.
Membership and Observer Status
Authors: Klein Eckart
Published: August 2024

This chapter gives an overview of the rules and conditions on membership in the Council of Europe (CoE). It frames the discussion within the context of the Eastern enlargement. According to Article 2 of the Council of Europe Statute, the parties to this Statute are the members of the organisation. Thus the chapter discusses the composition of the CoE’s membership since its founding, and the rules and obligations accompanying membership of the Council. Furthermore the chapter devotes a section to non-members with special working relations with the Council, discussing in particular two special statuses established for this purpose: the observer status and the special guest status. The chapter then concludes with some closing remarks on the developments the CoE has undergone.
Budget and Financing
Authors: Schmahl Stefanie
Published: August 2024

This chapter examines the financial provisions of the Council of Europe (CoE), which can be found in Chapter VII of the CoE Statute. The basic principles enshrined in Articles 38 and 39 CoE Statute are that each Member State bears the expenses of its own representation in the Council’s statutory bodies (Article 38 (a) CoE Statute). Articles 38 and 39 CoE Statute are also concretised and supplemented by various internal acts of the organisation. The most important provisions relating to budgetary matters are laid down in the Financial Regulations. The Regulations deal in detail with the preparation and the approval and utilisation of the Programme and Budget, with internal reporting, external auditing, accounting, and much more. Most importantly, Article 25 of the Financial Regulations provides for a Budget Committee, which examines the draft budget and submits its comments to the Committee of Ministers (CM).
The Conference of International Non-Governmental Organisations of the Council of Europe
Authors: Krieger Heike
Published: August 2024

This chapter analyses the origins, structures, and effects of the Conference of International Non-governmental Organisations of the Council of Europe. It aims to demonstrate the limits and chances for NGO participation at the international level. Hence the chapter shows how the NGOs serve as a possible redress on the perceived lack of legitimacy in the growing trend of ‘global governance’. They are seen as a means to further a participatory understanding of democracy on the international level. Insofar as NGOs are pursuing different aims and representing diverging values, their increasing participation has also been described as a reason for the politicisation of international organisations.
Eurimages Fund
Authors: McGonagle Tarlach
Published: August 2024

This chapter examines the European Support Fund for the Co-production and Distribution of Creative Cinematographic and Audiovisual Works, its origins and development, as well as its focuses and activities. Better known as ‘Eurimages’, it was established in 1989, by way of a partial agreement and in accordance with the terms set out in Council of Ministers (CM) Resolution (88) 15. The purpose of Eurimages is ‘to encourage […] the co-production, distribution, broadcasting and exploitation of creative cinematographic and audiovisual works, particularly by helping to finance the co-production, distribution, broadcasting and exploitation’. It may go about this task ‘in any way to be defined by the Board of Management’. Eurimages’ current membership comprises 36 Member States.
The Council of Europe and International Institutional Law
Authors: Breuer Marten
Published: August 2024

This chapter reconsiders some of the aspects of the Council of Europe (CoE) discussed in the preceding chapters, but from a different point of view, namely, the perspective of international institutional law. Despite certain constraints, the CoE has not only offered a forum of dialogue but also managed to deeply permeate the law and reality of its Member States. Therefore the functioning of the CoE may serve as confirmation of the general rules governing the law of international organisations. At the same time, there may be also peculiarities where the functioning of the Council differs from the functioning of other international organisations in general. Finally, it may be asked if and in which respect the CoE contributed to enhancing the law of international organisations.
The Concept of International Armed Conflict
Authors: Clapham Andrew
Published: August 2024

The treatment of people in armed conflict is one of the most highly regulated areas of international relations, with international law reaching down to create obligations for multiple actors, including states, organized armed groups, and individuals. Wars and armed conflicts, far from creating lawless zones, trigger multiple binding obligations under international and national law. In some cases, violations of these obligations can result in prosecutions—in the form of war crimes trials. This chapter discusses the applicability of the Geneva Conventions. It addresses the threshold of violence for international armed conflict (including cyber conflicts), and separates out the concepts of armed attack, use of force, and intervention. It also discusses the significance of overall control by a state over an armed group fighting another state. Lastly, it demonstrates that how one classifies a conflict is relevant for the determination of the applicable international rights and obligations.
Torture, Cruel, Inhuman, or Degrading Treatment or Punishment
Authors: Nowak Manfred , Janik Ralph
Published: August 2024

This chapter discusses the provisions on torture and cruel, inhuman, or degrading treatment or punishment (CIDT) in international human rights law (IHRL), international humanitarian law (IHL), and international criminal law (ICL). It shows that due to their absolute prohibition, acts that constitute torture or CIDT in times of peace cannot become tolerable in exceptional situations, above all in times of armed conflict. Applying the IHRL regime on this matter to IHL serves as a means to secure coherence in the application of the respective Articles in the Geneva Conventions. The chapter also covers the prohibition of torture and CIDT in non-international armed conflict and legal consequences of any violations of the right to human dignity.
Relationship with Prior and Subsequent Treaties and Conventions
Authors: Benvenuti Paolo
Published: August 2024

This chapter discusses the relationship of the Geneva Conventions with prior and subsequent International Humanitarian Law (IHL) treaties. Prior IHL treaties include older Geneva Conventions and the Hague Conventions. As to the relation of the Geneva Conventions to subsequent IHL treaties, the essential aspect to be considered is the link with the three Additional Protocols. In all such situations, the relationship is governed, as is usual in international law, by the later treaty, insofar as the Geneva Conventions do not contain rules providing for a procedure of amendment or revision; and, moreover, do not prohibit modification of their content by subsequent treaties.
Who Is a Prisoner of War?
Authors: Watts Sean
Published: August 2024

This chapter examines the qualification provisions for prisoner of war (POW) status under the Third Geneva Convention (GC III). It shows that Article 4 GC III merely identifies groups whose members are entitled to POW status and enumerates conditions for other groups whose members are entitled to POW status. The Article does not identify general requirements for individual belligerent conduct, or for armies and armed groups generally. Nor, strictly speaking, does it constitute a code of conduct or enumeration of criminal offences. By de-coupling POW status determinations from combatant immunity and other individual pre-capture conduct, the interpretive approach advocated by this chapter ensures broad and principled application of the GC III protective regime by states.
Concept, Sources, and International Organizations Relating to Shipping Law
Authors: Arroyo Ignacio
Published: August 2024

This chapter examines the different concepts, sources, and international organizations relating to shipping law. It analyses the various international maritime conventions than constitute shipping law, such as ship registration and maritime liens and mortgages. It then describes the two types of international maritime organizations: intergovernmental and non-governmental organizations. The intergovernmental maritime entities such as the International Maritime Organization (IMO) are exclusively composed of Member States, although some private organizations may be invited to participate as observers in working groups depending on the agenda. On the other hand, intergovernmental maritime organizations are made up of private companies. Both types have contributed to produce sources of maritime law, unification of the rules and guidelines, and criteria to avoid problems of interpretation.
Sale and Purchase of Second-Hand Ships
Authors: Strong Malcolm
Published: August 2024

This chapter delves into the practice of the selling and purchasing of second-hand ships. It looks into the standard forms used for the sale of ships, in particular the so-called ‘Saleforms’. These forms are primarily used for the sale of cargo-carrying vessels but, with appropriate adaptation, may also be used for the sale of passenger vessels, oil rigs, and other commercially used vessels. The chapter compares the standard contracts used for sale and purchase of second-hand ships to newbuilding contracts. A newbuilding contract is a substantial construction contract of significant length accompanied by a number of detailed schedules including the technical specifications. It is often negotiated face to face by representatives of the shipyard and of the buyers rather than through brokers and provides for the ship to be built to precise technical standards. The form also provides for a supervision team to be in place during the construction period.
Multimodal Transport
Authors: Faghfouri Mahin
Published: August 2024

This chapter describes the effects of the rising use of multimodal transport in the trading industry. Multimodal transport refers to the use of more than one mode of transport to carry goods to their destination. This practice, together with advances in technology such as the improved integration of different transport modes and more sophisticated automated cargo-handling facilities, have affected transportation practices both in efficiency and capability. However, many problems arise as a result of the lack of an international framework to regulate multimodal transport. The chapter discusses attempts by the international community to establish this framework, with the earliest attempt coming from the International Institute for the Unification of Private Law (UNIDROIT). It also proposes three types of liability systems that may be adopted by international trade law as the basis for a regulatory framework-the Uniform liability system, Network liability system, and Modified liability system.
Law of Marine Collisions and other Casualties to Hull and Machinery
Authors: Wiswall Frank L
Published: August 2024

This chapter outlines the development of international law regulating marine collisions and other casualties to hull and machinery of the ship. Under the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), flag State administrations are obliged to conduct investigations to determine the cause of collisions, with the objective of reporting causes and seeking changes in international and national regulations that will aid in preventing such collisions in the future. Since collisions are more likely to happen in their national jurisdiction, coastal State authorities also have sovereign jurisdiction to conduct similar investigations into collisions. The chapter also looks into the types of non-collision casualties. It elaborates on the requirements needed to consider a casualty non-collision as stated in Lloyd’s Casualty Return Classifications, the leading source for shipping and vessel casualty alerts, analysis, and information.
Limitation of Liability for Maritime Claims
Authors: Martínez Gutiérrez Norman A
Published: August 2024

This chapter explores the limitation of liability for maritime claims. Specifically, it analyses the main provisions of the Convention on Limitation of Liability for Maritime Claims (LLMC Convention) and the actions being taken to improve the system built upon the 1996 LLMC Protocol. The Convention recognizes the right of limitation of liability for salvors, any person for whose act, neglect, or default the shipowner or salvor is responsible, and insurers of liability. The chapter then describes the different claims subject to limitation and the claims exempted from limitation, as well as conduct barring limitation which emerges if it is proven that the loss resulted from a person’s act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.
Conventions Relating to Pollution Incident Preparedness, Response, and Cooperation
Authors: Gonzalez Gabino , Hébert Frédéric
Published: August 2024

This chapter sets out the timeline and evolution of the international and regional regulatory regime governing marine environment protection and provides information on the landmark conventions that have, over time, served to first establish and then further strengthen and improve the protection of the marine environment from the adverse effects of shipping. An analysis of the content of these instruments and their geographical coverage identifies areas requiring further development. It also highlights the complementarity of international (OPRC Convention) and regional frameworks (eg Regional Seas Programmes) and the importance of common efforts, approaches and initiatives engaged by their respective governing bodies, in close cooperation with other stakeholders.
The Human Element of Maritime Crime
Authors: Mallia Patricia
Published: August 2024

This chapter gives an overview of the legal regime relevant to stowaways, migrant smuggling, and trafficking in individuals. While the human element is a common thread which runs throughout all of these offences, the latter two share a much closer connection since they constitute the subject of two of the three Protocols to the United Nations Convention against Transnational Organized Crime 2000 (CATOC). The regime relating to stowaways is dealt with first, and the duties of States with regard to rescue at sea and State rights and powers under the law of the sea regime is discussed in relation to migrant smuggling and trafficking in individuals. This joint consideration also reflects the International Maritime Organization’s (IMO) approach to dealing with these forms of organized crime, the focus being on combating unsafe practices associated with the trafficking or transport of migrants by sea.
Introduction
Authors: Antkowiak Thomas M. , Gonza Alejandra
Published: August 2024

The Introduction presents the Inter-American Human Rights System’s impact, primary legal instruments, and its two key institutions, the Inter-American Court and Inter-American Commission. Next, it synthesizes and critiques major developments of the System’s jurisprudence—developments that have expanded or contracted the rights of the American Convention. Finally, the Introduction outlines the structure and methodology of the book’s remaining chapters.
Property
Authors: Antkowiak Thomas M , Gonza Alejandra
Published: August 2024

Among regional treaties, the Convention’s Article 21 provides a strong formulation of the right to property. The Court has elaborated a broad notion of property, including tangible and intangible property, as well as private and communal property. The Tribunal’s property case law has especially influenced international jurisprudence on indigenous rights. The Court’s 2001 ruling on an indigenous right to communal property was a first for an international human rights court. Throughout the Americas, States and private companies have extracted natural resources and developed commercial projects on lands belonging to indigenous peoples and Afro-Latin communities. In response, the Court has required that States comply with specific “safeguards”; however, the protections are easily evaded. To better defend vital ancestral lands and resources, we argue that the Court should adopt a robust right-to-life approach, rather than relying upon the more modest right to property in these cases.
Reparations
Authors: Antkowiak Thomas M , Gonza Alejandra
Published: August 2024

The Court’s extensive reparations are hailed as trailblazing. Interpreting the Convention’s Article 63, the Tribunal’s remedial approach comprises measures of restitution, rehabilitation, satisfaction, and guarantees of non-repetition, in conjunction with pecuniary and non-pecuniary damages. The Court is the only international body with binding jurisdiction that has consistently ordered this full range of reparations. Especially noteworthy is the Tribunal’s focus upon non-monetary remedies. Of course, the Court’s reparations are not without their flaws. As for non-monetary remedies, the Court at times could require more intensive victim engagement in the design and implementation of reparations. Yet, above all, the Tribunal’s inconsistent monetary reparations invite scrutiny. Particularly in the judgments involving groups, such as indigenous communities, the Court does not always respond to substantiated claims for monetary damages by both individuals and collectivities. If it neglects well-founded requests for material or moral compensation, the Court will compromise both individual and collective rights.
Nature, Evolution, and Context of International Investment Law
Authors: Dolzer Rudolf , Schreuer Rudolf
Published: August 2024

This chapter begins with a discussion of international investment law as field of study. It then discusses the long-term risks of foreign investment, host state sovereignty and the rules of foreign investment, customary international law, treaty law, current trends in treaty practice, and regional agreements.
Interpretation and Application of Investment Treaties
Authors: Dolzer Rudolf , Schreuer Rudolf
Published: August 2024

This chapter discusses the interpretation and application of investment treaties. The first section covers the methods of treaty interpretation, travaux préparatoires (preparatory work), interpretative statements, the authority of ‘precedents’, and suggestions to improve the consistency of decisions. The second section discusses the inter-temporal application of treaties, inter-temporal rules for jurisdiction and substance, relevant dates to determine jurisdiction, relevant date under the ICSID Convention, and inter-temporal rules in other treaties
Admission and Establishment
Authors: Dolzer Rudolf , Schreuer Rudolf
Published: August 2024

This chapter begins with a discussion of the move towards economic liberalism. It distinguishes the right of ‘admission’ of foreign investment from the right of ‘establishment’, and identifies typical issues concerning admission and establishment. Treaty models of admission, performance requirements, and non-compliance by investor with host state law are also discussed.
National Court Interference: Anti-Arbitration Injunctions
Authors: Dugan Christopher F , Wallace Jr , Rubins Noah , Sabahi Borzu
Published: August 2024

National courts are an essential component of successful international arbitration. Arbitrators, as private persons, lack the coercive police power of the state, which is reserved for government. At various stages in the arbitration process, effective adjudication may therefore become difficult to achieve without implementation or the threat of implementation by a national court. However, most parts of the world have realized that excessive intervention by state courts can deprive arbitration of its usefulness. Court interference slows the process, makes it more expensive, and can tilt the playing field if a party turns to its own national courts for support in an arbitrable dispute. This chapter discusses anti-arbitration injunctions and the International Centre for Settlement of Investment Disputes Convention.
Governing Law in Investment Disputes
Authors: Dugan Christopher F , Wallace Jr , Rubins Noah , Sabahi Borzu
Published: August 2024

There are four primary sources of substantive law pertinent to investment disputes: rules or contractual terms agreed to by the parties, if any; the investment treaties themselves; the law of the host state and other relevant rules of national law; and public international law. As the investment treaty regime has developed over the last few decades, tribunals have turned ever more frequently to investment treaty texts and evolving norms of international law. This chapter examines different sources of substantive law that may be applicable to the merits of an investment arbitration.
The Concept of Investment
Authors: Dugan Christopher F , Wallace Jr , Rubins Noah , Sabahi Borzu
Published: August 2024

This chapter examines the definition of the term investment under investment treaties, national investment legislations, and the Washington Convention, in light of the relevant case law. Topics covered include definitions of investment in protection instruments; definition of investment and its implications for the jurisdiction of arbitral tribunals under the Washington Convention; the concept of unity of investment under the Washington Convention; the concept of investment and its implications for the jurisdiction of arbitral tribunals under arbitral rules other than the Washington Convention; and preinvestment protection.