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24652 results in Public International Law

Page 490 of 1233

  • 58 - Rio Declaration on Environment and Development

  • from Part V - Substantive Issues
  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 487-490

  • Summary

    www.unep.org/

    Adopted: 14 June 1992

    In force: not applicable

    The United Nations Conference on Environment and Development,

    Having met at Rio de Janeiro from 3 to 14 June 1992,

    Reaffirming the Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm on 16 June 1972, and seeking to build upon it,

    With the goal of establishing a new and equitable global partnership through the creation of new levels of co-operation among States, key sectors of societies and people,

    Working towards international agreements which respect the interests of all and protect the integrity of the global environmental and developmental system,

    Recognizing the integral and interdependent nature of the Earth, our home,

    Proclaims that:

    Principle 1

    Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.

    Principle 2

    States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

    Principle 3

    The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

    Principle 4

    In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

    Principle 5

    All States and all people shall cooperate in the essential task of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better meet the needs of the majority of the people of the world.

    Principle 6

    The special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries.

    Principle 7

    States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem.

  • 52 - Treaty on the Non-proliferation of Nuclear Weapons

  • from Part V - Substantive Issues
  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 390-394

  • Summary

    disarmament.un.org/treaties/t/npt/text

    Concluded: 1 July 1968

    In force: 5 March 1970

    The States concluding this Treaty, hereinafter referred to as the Parties to the Treaty,

    Considering the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples,

    Believing that the proliferation of nuclear weapons would seriously enhance the danger of nuclear war,

    In conformity with resolutions of the United Nations General Assembly calling for the conclusion of an agreement on the prevention of wider dissemination of nuclear weapons,

    Undertaking to co-operate in facilitating the application of International Atomic Energy Agency safeguards on peaceful nuclear activities,

    Expressing their support for research, development and other efforts to further the application, within the framework of the International Atomic Energy Agency safeguards system, of the principle of safeguarding effectively the flow of source and special fissionable materials by use of instruments and other techniques at certain strategic points,

    Affirming the principle that the benefits of peaceful applications of nuclear technology, including any technological by-products which may be derived by nuclear-weapon States from the development of nuclear explosive devices, should be available for peaceful purposes to all Parties to the Treaty, whether nuclear-weapon or non-nuclear-weapon States,

    Convinced that, in furtherance of this principle, all Parties to the Treaty are entitled to participate in the fullest possible exchange of scientific information for, and to contribute alone or in co-operation with other States to, the further development of the applications of atomic energy for peaceful purposes,

    Declaring their intention to achieve at the earliest possible date the cessation of the nuclear arms race and to undertake effective measures in the direction of nuclear disarmament,

    Urging the co-operation of all States in the attainment of this objective,

    Recalling the determination expressed by the Parties to the 1963 Treaty banning nuclear weapons tests in the atmosphere, in outer space and under water in its Preamble to seek to achieve the discontinuance of all test explosions of nuclear weapons for all time and to continue negotiations to this end,

  • 16 - ECHR, Sixth Protocol

  • from Part II - Protecting the Individual
  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 154-156

  • Summary

    ETS NO. 114

    Concluded: 28 April 1983

    In force: 1 March 1985

    ARTICLE 1 ABOLITION OF THE DEATH PENALTY 154

    ARTICLE 2 DEATH PENALTY IN TIME OF WAR 154

    ARTICLE 3 PROHIBITION OF DEROGATIONS 154

    ARTICLE 4 PROHIBITION OF RESERVATIONS 155

    ARTICLE 5 TERRITORIAL APPLICATION 155

    ARTICLE 6 RELATIONSHIP TO THE CONVENTION 155

    ARTICLE 7 SIGNATURE AND RATIFICATION 155

    ARTICLE 8 ENTRY INTO FORCE 155

    ARTICLE 9 DEPOSITARY FUNCTIONS 155

    The member States of the Council of Europe, signatory to this Protocol to the Convention for the protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”),

    Considering that the evolution that has occurred in several member States of the Council of Europe expresses a general tendency in favour of abolition of the death penalty,

    Have agreed as follows:

    Article 1 Abolition of the death penalty

    The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.

    Article 2 Death penalty in time of war

    A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.

    Article 3 Prohibition of derogations

    No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.

    Article 4 Prohibition of reservations

    No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.

    Article 5 Territorial application

  • 1. Any State may at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Protocol shall apply.

  • 2. Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the date of receipt of such declaration by the Secretary General.

  • 19 - ECHR, Thirteenth Protocol

  • from Part II - Protecting the Individual
  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 164-166

  • Summary

    ETS NO. 187

    Concluded: 3 May 2002

    In force: 1 July 2003

    ARTICLE 1 ABOLITION OF THE DEATH PENALTY 164

    ARTICLE 2 PROHIBITION OF DEROGATIONS 165

    ARTICLE 3 PROHIBITION OF RESERVATIONS 165

    ARTICLE 4 TERRITORIAL APPLICATION 165

    ARTICLE 5 RELATIONSHIP TO THE CONVENTION 165

    ARTICLE 6 SIGNATURE AND RATIFICATION 165

    ARTICLE 7 ENTRY INTO FORCE 165

    ARTICLE 8 DEPOSITARY FUNCTIONS 166

    The member States of the Council of Europe signatory hereto,

    Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings;

    Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”);

    Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war;

    Being resolved to take the final step in order to abolish the death penalty in all circumstances,

    Have agreed as follows:

    Article 1 Abolition of the death penalty

    The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

    Article 2 Prohibition of derogations

    No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.

    Article 3 Prohibition of reservations

    No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.

    Article 4 Territorial application

  • 1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Protocol shall apply.

  • 2. Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration.

  • Part II - Protecting the Individual

  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 111-111

  • Summary

    10 Convention on the Prevention and Punishment of the Crime of Genocide 112

    11 Convention Relating to the Status of Refugees 116

    12 Protocol Relating to the Status of Refugees 130

    13 European Convention for the Protection of Human Rights and Fundamental Freedoms 134

    14 ECHR, First Protocol 149

    15 ECHR, Fourth Protocol 151

    16 ECHR, Sixth Protocol 154

    17 ECHR, Seventh Protocol 157

    18 ECHR, Twelfth Protocol 161

    19 ECHR, Thirteenth Protocol 164

    20 ECHR, Fifteenth Protocol 167

    21 ECHR, Sixteenth Protocol 170

    22 International Covenant on Civil and Political Rights 173

    23 International Covenant on Economic, Social and Cultural Rights 189

    24 American Convention on Human Rights 198

    25 African Charter on Human and Peoples’ Rights 219

    26 Protocol on the Rights of Women in Africa 231

    27 Protocol on the Establishment of an African Court on Human and Peoples’ Rights 244

    28 ASEAN Human Rights Declaration 252

    29 ILO Declaration on Fundamental Principles and Rights at Work 258

    30 Accord on Fire and Building Safety in Bangladesh 260

  • 8 - Articles on Diplomatic Protection

  • from Part I - General Instruments
  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 101-105

  • Summary

    UN GENERAL ASSEMBLY RESOLUTION A/RES/62/67

    NO CONVENTION ENVISAGED

    In force: not applicable

    PART ONE GENERAL PROVISIONS 101

  • Article 1 Definition and scope 101

  • Article 2 Right to exercise diplomatic protection 102

    • PART TWO NATIONALITY 102

    CHAPTER I GENERAL PRINCIPLES 102

    Article 3 Protection by the State of nationality 102

    CHAPTER II NATURAL PERSONS 102

  • Article 4 State of nationality of a natural person 102

  • Article 5 Continuous nationality of a natural person 102

  • Article 6 Multiple nationality and claim against a third State 103

  • Article 7 Multiple nationality and claim against a State of nationality 103

  • Article 8 Stateless persons and refugees 103

    • CHAPTER III LEGAL PERSONS 103

  • Article 9 State of nationality of a corporation 103

  • Article 10 Continuous nationality of a corporation 103

  • Article 11 Protection of shareholders 104

  • Article 12 Direct injury to shareholders 104

  • Article 13 Other legal persons 104

    • PART THREE LOCAL REMEDIES 104

  • Article 14 Exhaustion of local remedies 104

  • Article 15 Exceptions to the local remedies rule 104

    • PART FOUR MISCELLANEOUS PROVISIONS 105

  • Article 16 Actions or procedures other than diplomatic protection 105

  • Article 17 Special rules of international law 105

  • Article 18 Protection of ships’ crews 105

  • Article 19 Recommended practice 105

    • PART ONE GENERAL PROVISIONS

    Article 1 Definition and scope

    For the purposes of the present draft articles, diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.

    Article 2 Right to exercise diplomatic protection

    A State has the right to exercise diplomatic protection in accordance with the present draft articles.

    PART TWO NATIONALITY

    Chapter I General Principles

    Article 3 Protection by the State of nationality

  • 1. The State entitled to exercise diplomatic protection is the State of nationality.

  • 2. Notwithstanding paragraph 1, diplomatic protection may be exercised by a State in respect of a person that is not its national in accordance with draft article 8.

  • 30 - Accord on Fire and Building Safety in Bangladesh

  • from Part II - Protecting the Individual
  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 260-266

  • Summary

    http://bangladeshaccord.org/

    Adopted: 13 May 2013

    In force: not applicable

    The undersigned parties are committed to the goal of a safe and sustainable Bangladeshi Ready-Made Garment (“RMG”) industry in which no worker needs to fear fires, building collapses, or other accidents that could be prevented with reasonable health and safety measures.

    The signatories to this Agreement agree to establish a fire and building safety program in Bangladesh for a period of five years.

    The programme will build on the National Action Plan on Fire Safety (NAP), which expressly welcomes the development and implementation by any stakeholder of any other activities that would constitute a meaningful contribution to improving fire safety in Bangladesh. The signatories commit to align this programme and its activities with the NAP and to ensure a close collaboration, including for example by establishing common programme, liaison and advisory structures.

    The signatories also welcome a strong role for the International Labour Organization (ILO), through the Bangladesh office as well as through international programmes, to ensure that both the National Action Plan, and the programme foreseen by the signatories of this Agreement, get implemented.

    The signatories shall develop and agree an Implementation Plan within 45 days of signing this Agreement. The nongovernmental organisations which are signatories to the Joint Memorandum of Understanding on Fire and Building Safety (dated March 15, 2012), having stated their intention to support the implementation of this programme, shall, at their own election, be signed witnesses to this Agreement.

    This Agreement commits the signatories to finance and implement a programme that will take cognizance of the Practical Activities described in the NAP involving, at minimum, the following elements:

    SCOPE

    The agreement covers all suppliers producing products for the signatory companies. The signatories shall designate these suppliers as falling into the following categories, according to which they shall require these supplier to accept inspections and implement remediation measures in their factories according to the following breakdown:

  • 1. Safety inspections, remediation and fire safety training at facilities representing, in the aggregate, not less than 30%, approximately, of each signatory company's annual production in Bangladesh by volume (“Tier 1 factories”).

  • 2. Inspection and remediation at any remaining major or long-term suppliers to each company (“Tier 2 factories”). Together, Tier 1 and Tier 2 factories shall represent not less than 65%, approximately, of each signatory company's production in Bangladesh by volume.

  • 62 - Understanding on Rules and Procedures Governing the Settlement of Disputes (Annex 2 of the WTO Agreement)

  • from Part V - Substantive Issues
  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 527-534

  • Summary

    www.wto.org/english/tratop_e/dispu_e/dsu_e.htm

    Concluded: 15 April 1994

    In force: 1 January 1995

    Article 1 Coverage and Application 527

    Article 2 Administration 528

    Article 3 General Provisions 528

    Article 6 Establishment of Panels 530

    Article 7 Terms of Reference of Panels 530

    Article 8 Composition of Panels 531

    Article 16 Adoption of Panel Reports 532

    Article 17 Appellate Review 532

    Members hereby agree as follows:

    Article 1 Coverage and Application

  • 1. The rules and procedures of this Understanding shall apply to disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1 to this Understanding (referred to in this Understanding as the “covered agreements”). The rules and procedures of this Understanding shall also apply to consultations and the settlement of disputes between Members concerning their rights and obligations under the provisions of the Agreement Establishing the World Trade Organization (referred to in this Understanding as the “WTO Agreement”) and of this Understanding taken in isolation or in combination with any other covered agreement.

  • 2. The rules and procedures of this Understanding shall apply subject to such special or additional rules and procedures on dispute settlement contained in the covered agreements as are identified in Appendix 2 to this Understanding. To the extent that there is a difference between the rules and procedures of this Understanding and the special or additional rules and procedures set forth in Appendix 2, the special or additional rules and procedures in Appendix 2 shall prevail. In disputes involving rules and procedures under more than one covered agreement, if there is a conflict between special or additional rules and procedures of such agreements under review, and where the parties to the dispute cannot agree on rules and procedures within 20 days of the establishment of the panel, the Chairman of the Dispute Settlement Body provided for in paragraph 1 of Article 2 (referred to in this Understanding as the “DSB”), in consultation with the parties to the dispute, shall determine the rules and procedures to be followed within 10 days after a request by either Member. The Chairman shall be guided by the principle that special or additional rules and procedures should be used where possible, and the rules and procedures set out in this Understanding should be used to the extent necessary to avoid conflict.

  • 12 - Protocol Relating to the Status of Refugees

  • from Part II - Protecting the Individual
  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 130-133

  • Summary

    660 UNTS 267

    Concluded: 31 January 1967

    In Force: 4 October 1967

    ARTICLE 1 GENERAL PROVISION 130

    ARTICLE 2 CO-OPERATION OF THE NATIONAL AUTHORITIES WITH THE UNITED NATIONS 131

    ARTICLE 3 INFORMATION ON NATIONAL LEGISLATION 131

    ARTICLE 4 SETTLEMENT OF DISPUTES 131

    ARTICLE 5 ACCESSION 131

    ARTICLE 6 FEDERAL CLAUSE 131

    ARTICLE 7 RESERVATIONS AND DECLARATIONS 132

    ARTICLE 8 ENTRY INTO FORCE 132

    ARTICLE 9 DENUNCIATION 133

    ARTICLE 10 NOTIFICATIONS BY THE SECRETARY-GENERAL OF THE UNITED NATIONS 133

    ARTICLE 11 DEPOSIT IN THE ARCHIVES OF THE SECRETARIAT OF THE UNITED NATIONS 133

    The States Parties to the present Protocol,

    Considering that the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (hereinafter referred to as the Convention) covers only those persons who have become refugees as a result of events occurring before I January 1951,

    Considering that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may therefore not fall within the scope of the Convention,

    Considering that it is desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline I January 1951,

    Have agreed as follows:

    Article 1 General provision

  • 1. The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined.

  • 2. For the purpose of the present Protocol, the term “refugee” shall, except as regards the application of paragraph 3 of this article, mean any person within the definition of article I of the Convention as if the words “As a result of events occurring before 1 January 1951 and…” and the words “…as a result of such events”, in article 1 A (2) were omitted.

  • 3. The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save that existing declarations made by States already Parties to the Convention in accordance with article 1 B (1) (a) of the Convention, shall, unless extended under article 1 B (2) thereof, apply also under the present Protocol.

  • Introduction: Humanity Washed Ashore

  • Itamar Mann
  • Book:
    Humanity at Sea
    Published online:
    05 September 2016
    Print publication:
    29 September 2016, pp 1-20

  • Summary

    Unauthorized migration has become one of the most visible and contentious political issues everywhere. As the catastrophe in Syria unfolds, the more ordinary atrocity of abject poverty continues to uproot populations. Perhaps the most alarming images related to this phenomenon are those of unauthorized migrants crossing the sea in insecure vessels. For years newspapers have been publishing photos of migrants' boats from locations as far from each other as the Canaries and Indonesia. These rickety vessels are overloaded with men, women, and children, drifting upon vast expanses of water. The spectacle has reached a new extreme in two areas of the Mediterranean – the Aegean Sea and the Waterway between Sicily and North Africa. Sunbathers confront exhausted survivors pulling themselves out of the water. Fishermen fear they might lift dead bodies with every fresh net pulled aboard. The most iconic of these images is the widely circulated photograph of a Syrian toddler lying face down on the beach in the Turkish resort town of Budrum. This macabre shot immediately went viral and within hours the hashtag #KiyiyaVuranInsanlik – “humanity washed ashore” – became the top trending topic on Twitter. A few days later, the image of the boy – his name became a matter of some dispute – was cast as a symbol of our times. This book aims to give an answer to one question: What can the phenomenon these images capture tell us about the nature of legality?

    It will come as no surprise that the contemporary migration crisis and its maritime aspects are a matter of some significance to legal theory, particularly international legal theory. As Hilary Charlesworth wryly observed, “International lawyers revel in a good crisis.” Crisis becomes a focal point particularly in a genre of international law characterized by a desire for “a counterweight to the formalism of the study of rules.” Indeed, it has been suggested that for the international lawyer crisis plays the role precedents play in the case method. As a so-called discipline of crisis, international law has often been exposed to a number of recurring pitfalls that seem to come with this fraught territory. These might be characterized as a certain penchant for drama.

  • 3 - What Is a Human Rights Commitment?

  • Itamar Mann
  • Book:
    Humanity at Sea
    Published online:
    05 September 2016
    Print publication:
    29 September 2016, pp 102-133

  • Summary

    In May 1941, Hannah Arendt arrived in New York. She was thirty-two years old, broke, and knew little English. But it wasn't long before she started to publish her essays and reviews in the new language. Among these early works was “We Refugees” (1943), a short and personal piece she penned for the Jewish-American The Menorah Journal. Her experiences of persecution are reflected in this essay. Yet Arendt was now in the safety of a new society. Though still stateless – Arendt became a naturalized citizen of the United States in 1950 – she began to enjoy her membership in the American social contract. In some of her later work, Arendt celebrated the constitutional tradition of the society she now became part of. Comparing the American to the French revolution, she painted a magnificent portrait of the American Founding Fathers, who appeared as the architects of the paramount democracy in modern times.

    In 1941, it may have looked to Arendt like a commitment to realize the rights of noncitizens could be incorporated as part of the American social contract. This proposition was fundamentally and dramatically put to a test at the US Supreme Court fifty years later, as the Cold War came to an end. Noncitizens at American borders were no longer Europeans or allies from a faraway war. Like the growing number of unauthorized migrants landing at the borders of Europe around the same time, they came from the developing world and were propelled by a mixture of persecution and economic dearth. US policymakers believed the country had no interest in admitting them.

    Facing Haitian refugees, the US Supreme Court did not find that noncitizens could enforce their rights by appeal to the American social contract. The Court did not even uphold the minimal idea of human rights as protection of survival, explained in the previous chapter. Instead, the Court allowed the executive branch to close the country's doors. Under a bilateral agreement with Haiti, migrants were interdicted on the high seas and sent back to the risk of persecution. Sale v. Haitian Centers Council (1993) was the famous (or rather infamous) case that upheld this arrangement.

  • Epilogue

  • James Gerard Devaney, University of Glasgow
  • Book:
    Fact-Finding before the International Court of Justice
    Published online:
    05 September 2016
    Print publication:
    29 September 2016, pp 254-256

  • Summary

    The central argument of this book, that taking a more proactive approach to fact-finding will enable the Court to address a number of current weaknesses in its approach to fact-finding, is not merely academic. The proposals advocated in Chapter 4 are designed to be capable of implementation by the Court in practice. Inspiration for these reforms is drawn from the practice of other inter-State tribunals and it is important to remember that today the ICJ is just one of several means for settling inter-State disputes. Furthermore, jurisdiction remains largely consensual in international law and as such it is necessary to consider how the proposed reforms, and the resulting more proactive approach, could affect the appeal of the Court to States deciding how they wish to settle an inter-State dispute.

    Due to the popularity of the WTO Adjudicatory Bodies and the renaissance of inter-State arbitration (as well as continued use of more traditional fora) there is more inter-State dispute settlement today than ever before. Although not all inter-State arbitrations are conducted in public, there now exists a large body of international practice upon which to draw. The practice of the WTO Adjudicatory Bodies and inter-State arbitrations illustrate that more proactive tribunals do not necessarily provoke a defensive response from States in order to protect their own sovereignty, by, for instance, resisting requests for information or simply refusing to appear. In fact there appears to be no discernable connection between a tribunal taking a more proactive approach to fact-finding and non-appearance or non-compliance. Of course, the possibility remains that the increased visibility that comes with being a party to a case before the World Court would prompt States to behave differently, but in the absence of any evidence to support such a suggestion, until a more proactive approach is taken such speculation as to the reaction of States will inevitably remain just that: speculation. Consequently, the Court has reason to be bold in pursuing a course of action that the evidence presented in Chapter 3 suggests could address a number of fact-finding problems that it currently faces.

    Throughout the preceding chapters other inter-State tribunals such as ITLOS and the international criminal tribunals were referred to in relation to a number of discrete areas, most often to provide context or a point of comparison in relation to the argument being made.

  • 5 - The Place Where We Stand

  • Itamar Mann
  • Book:
    Humanity at Sea
    Published online:
    05 September 2016
    Print publication:
    29 September 2016, pp 163-186

  • Summary

    There may be something disturbingly incomplete, perhaps even misleading, in comparing “a refugee” to “a vessel on the open sea, not sailing under any flag.” This analogy, introduced at the opening of Chapter 1, may suggest that the human rights encounter happens fortuitously. But it would be a mistake to imagine the self suddenly struck by a duty that is both ethical and legal. A crucial question is how power struggles shape the conditions that allow such an encounter to occur or prevent it from occurring in the first place. Previous chapters address this question, though indirectly. Taking on this question requires quite a different analysis from what I offered so far. Such analysis is about the transformations of the environment in which encounters appear or disappear. And it is about the possibility of influencing such transformations. The place where we stand when the human rights encounter occurs is not naturally given. It is manufactured by political and economic power, history, culture, and technology. Fortunes are spent in reshaping it and lives are lost in attempts to reconfigure it. Addressing these structural conditions requires a shift in focus. It cannot be done by considering the human rights encounter from the internal point of view of one of its two parties. The position of an implicated third-party observer, responding to the human rights encounter after it occurred, is also not helpful. To discuss the space where the human rights encounter occurs, it is necessary to try to think of the human rights encounter from an external point of view. Attention must be granted not only to such encounters after they had already occurred. Equally important are those that have not yet taken place or that are yet to take place.

    This chapter focuses on two journeys that embarked from Libya and aimed to reach Italy, one in 2009 and the other in 2011. By revisiting these much-discussed cases, the chapter explores the ways in which various actors have in recent years partaken in manufacturing the place where the human rights encounter occurs. This is the place in which the relatively powerless party addresses the relatively powerful one.

  • 4 - Winds of change: the possibility of reform

  • James Gerard Devaney, University of Glasgow
  • Book:
    Fact-Finding before the International Court of Justice
    Published online:
    05 September 2016
    Print publication:
    29 September 2016, pp 179-241

  • Summary

    Richard B. Lillich famously argued that the Court often fails ‘to take advantage of existing procedures to help unearth the facts that may be the key to the resolution of disputes’. This point was made and developed at length in Chapters 1 and 2. However, it is the conclusions that Lillich drew from this state of affairs that are the subject of this chapter, namely that the Court should ‘be far more aggressive in seeking the facts’ and utilising the fact-finding tools it already possesses. This chapter seeks to draw on the practice of the other international tribunals examined in Chapter 3 and suggests that there are a number of avenues open to the Court that could potentially remedy some of its current fact-finding weaknesses:

    1. 1. The first relates to the possibility of making greater use of the fact-finding powers that the Court already possesses. Section 4.1 explores the possibility of the Court taking a teleological approach to its Statute and Rules and the so-called duty of collaboration in asking whether the Court could construe its fact-finding powers to compel the production of evidence, as opposed to merely requesting it.

    2. 2. Secondly, the possibility of better utilising the Court's power to order provisional measures under Article 41 of its Statute is examined.

    3. 3. Thirdly, relating to both the fact-finding and fact-assessment processes, Section 4.3 explores the possibility of increased use of experts, the refinement of the current procedure for the presentation of expert evidence and greater use of cross-examination as a way of aiding the Court in effectively assessing the facts put before it by the parties.

    Subsequently Chapter 5 examines the merits of taking a more proactive approach to fact-finding as facilitated in the manner set out in the present chapter.

    Developing a power to compel the disclosure of evidence

    The first avenue the Court could explore in taking a more proactive approach to the facts relates to the possibility of making greater use of the fact-finding powers the Court already possesses. This section explores the possibility of the Court taking a teleological approach to its Statute and Rules and relying on the so-called duty of collaboration in asking whether the Court could potentially construe its fact-finding powers to compel the production of evidence, as opposed to merely requesting it.

  • 1 - Flagless Vessel

  • Itamar Mann
  • Book:
    Humanity at Sea
    Published online:
    05 September 2016
    Print publication:
    29 September 2016, pp 21-55

  • Summary

    “For the lawyer,” wrote Paul Weis in a 1954 article titled “The International Protection of Refugees,” “the status of a person who is deprived of national protection is ‘anomalous.’ A stateless person – and this applies equally to refugees – has been compared to a vessel on the open sea, not sailing under any flag.” By invoking this image, the legal advisor to the newly established United Nations High Commissioner for Refugees (UNHCR) posed a seemingly technical dilemma. “The lawyer” is not sure where jurisdiction over such persons lies, or who is to be held accountable for their plight. She may consult her books, but what she'll find is a missing page.

    Weis's answer to this dilemma was his life's work. One of the major participants in formulating the 1951 Refugee Convention, he directed UNHCR's legal division up to his retirement in 1967. The treaty, alongside a host of other international legal instruments, sought to fill a gap in international law and grant a remedy to those who lost their ties to community or citizenship. Responding to events from the interwar period and during WWII, it culminated an attempt to solve the “refugee problem” through treaty law. Human rights would become a discipline that identified more than any other with a number of postwar treaties. A host of international governments, international organizations, and private actors would become entrusted with the task of administering treaty obligations in what came to be known as “transnational governance.”

    Introducing the analogy of the flagless vessel – and the dilemma it represented – Weis probably did not have in mind a widely publicized chain of events that took place only a few years earlier. But when about 4,500 displaced Jews left Marseilles for Palestine on a boat that came to be known as the Exodus, they literally enacted his analogy. Though only one of many boats of Jews that aimed to reach Palestine clandestinely, the Exodus came to be the most famous of them all.

    By literally enacting Weis's hypothetical, these migrants put it to a test. But the answer to his dilemma that their actions represented was a far cry from his efforts to advance treaty law as the foundation for human rights protection.

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