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This chapter addresses the substantive provisions: the Preamble and Article 1, which introduce complementarity as a general principle, and Articles 17 and 20 (3), which translate that principle into criteria for the admissibility of cases before the ICC, including the key notions of ‘unwillingness’ and ‘inability’. These criteria bear the potential of responding to many of the obstacles that hamper effective domestic suppression of core crimes. Conversely, the criteria provide yardsticks for what States have to do in order to retain jurisdiction. However, the detailed nature of the definitions of ‘unwillingness' and ‘inability’ result in some gaps vis-à-vis some situations and considerable overlap in others. With a view to overcome these difficulties in defining the criteria for admissibility, it is suggested that consideration should be given to replace the notions of ‘unwillingness’ and ‘inability’ with the criterion of ‘effectiveness’ of domestic proceedings.

This chapter addresses the exceptions that apply exclusively to third country direct investment, i.e., Article 57 (1) EC, Article 59 EC, and Article 60 EC. Article 57 (1) EC contains a grandfathering clause for restrictive national and Community laws with respect to the categories of direct investment, including real estate, establishment, the provision of financial services, and admission of securities to capital markets. Concerning Article 57 (2) — empowering the Community to adopt measures involving the categories of capital movement mentioned above — this book limits itself to a broad brush depiction of the provision. Article 59 EC allows the Community to take temporary safeguard measures with regard to third countries in case of economic crisis. Article 60 EC provides the EC, and on an interim basis also the Member States, in the framework of the Common Foreign and Security Policy (CFSP), with a tool to adopt economic sanctions against one or more third countries in the area of free movement of capital. The discussion of the above-mentioned exceptions centres upon their effects on the standard of liberalisation of foreign direct investment achieved by virtue of Article 56 (1) EC.

This chapter maps the scope of the ‘prohibition of restriction’ enshrined in Article 56 (1) EC — falling into two tests, the non-hindrance and the non-discrimination tests — in both intra-Community and third-country contexts. First, the operation of the non-hindrance and non-discrimination tests in an intra-Community context is analyzed. With respect to the ‘non-hindrance’ test this chapter in particular addresses the issue of whether and to what extent the doctrinal concepts developed by the Court in the context of other freedoms can be translated into the ambit of free movement of capital. Turning to the ‘non-discrimination test’, although Article 56 (1) EC does not explicitly mention the ‘prohibition of discrimination’, this omission is not to be understood as saying that within the ambit of free movement of capital, discriminatory conduct would not in principle be prohibited. In the second part of the discussion, the chapter assesses whether the construction set forth for an intra-Community context needs to be revised when it comes to third country capital movement. The discussion largely evolves around two points. First, the persuasiveness of teleological considerations based on the argument that free capital movement in a third-country context allegedly serves the Treaty aims to a lesser extent than it does in an intra-Community context is critically reviewed. Secondly, within the context of the non-discrimination test, the question of ‘comparability’ in principle of domestic/intra-Community and third country direct investment is examined.

This chapter examines the extent to which international humanitarian law (IHL) may be applicable to peacekeeping forces, and the extent to which this encompasses positive obligations that would require troops to protect the local population from serious abuses of certain of their human rights. Common to the four Geneva Conventions, Article 1 is the most significant provision of IHL that could be construed as obliging troops to take action to prevent serious abuses of human rights being committed by third parties. Article 1 provides that the High Contracting Parties undertake to ‘respect and ensure respect’ for the provisions of the Conventions ‘in all circumstances’. It is now largely accepted that Article 1 of the Geneva Conventions carries third party obligations for State parties at a general level; but it is not clear what this implies for States that contribute to peacekeeping operations or for the peacekeepers themselves.

The guarantee of the protection of property, contained in Article 1 of Additional Protocol No. 1, has become — after Article 6 ECHR — the second most frequently invoked guarantee of the Convention. This chapter first begins by presenting the jurisprudence describing the Convention notion of protection of property generally. It then discusses illustrative case law concerning the concept of ‘legitimate expectations’, social security claims, and the way some well-known recent judgments approach the interpretation of Article 1 of Protocol No. 1. It selects four categories of very recent cases and discusses them. The discussion demonstrates that the Strasbourg Court has encountered exaggerated formalism, chicanery, tricks, or plainly arbitrary acts by State authorities.

This chapter explores attempts to “reframe” Islamism in the 1990s by both PAS and UMNO by investigating the contours of the ongoing debate between PAS and UMNO, and within PAS itself, over the nature and expression of Islam as an organizing principle for society and politics in pluralist Malaysia. It also examines how Malaysia’s non-Muslim community has responded to this renovation and negotiation exercise that Malaysia’s main Islamist parties have been engaged in.

This chapter examines State implementation of Article 9(2) to balance out competing interests between individual freedom to manifest a religion or belief and the legitimate interests of the State in ensuring that such manifestations are restricted from unduly interfering in public health and order, morality, and the rights and freedoms of others. The Court and Commission give wide leeway for State activity in justifying whether restrictions on the manifestation of religion or belief are necessary. Although the Court and Commission are tasked to secure State action on manifesting religion or belief, not many cases are passed on to Article 9(2) because they paid little attention to issues concerning Article9(1), either bypassing the article with little explanation for breach or completely ignoring the issues. Limited scope is given to Article 9(1).

This chapter shows that on competition law the second form of environmental integration can take place either under Article 101(1) TFEU’s European rule of reason and Article 101(3) TFEU, or under the objective justification and efficiency defence in the examination of Article 102 TFEU. The chapter first explores Article 101(1) and 101(3) TFEU and then Article 102 TFEU. It particularly focuses on the extent to which environmental protection can be balanced against restrictions of competition under the different tests because such balancing is contentious. Finally, the chapter conceptualizes the relationship between the different forms of balancing in Article 101(1) and 101(3) TFEU, the objective justification and the efficiency defence under Article 102 TFEU, and their interaction with Article 106(2) TFEU.

This chapter concentrates on the application of the right to manifest freedom of religion or belief — an essential protection for freedom of religion or belief stipulated in Article 9(1) under the Convention. It describes the difficulty of demonstration of the right caused by restrictions, not only from State interference, relatively narrow definition of terms, and numerous possible interpretations of the manifestation, but also from Court and Commission management. The approach of the Court and Commission to manifestation of religious rights offers limited scope and protection, especially to minorities and individual believers, since their performance is supported by insufficient reference to what is necessary to religion or belief, and since their approach is analogous to the tradition of Christian beliefs, a dominantly recognized religion.

This chapter discusses the Court’s decisions in petitions challenging deportation of Palestinians from the Occupied Territories. The discussion includes the Court’s decision on the mass deportation of 415 people in 1992, which is the last instance in which this measure was used. The chapter provides a critical analysis of the Court’s interpretation of Article 49(1) of the Fourth Geneva Convention, which places an absolute prohibition on deportation of protected persons. The chapter presents the procedural requirements on deportation proceedings imposed by the Court and concludes with a discussion of the Court’s decisions on the removal of West Bank residents to Gaza under ‘assigned residence’ orders.

This chapter examines the second form of environmental integration in the context of the exceptions and exemptions under Article 107(3) TFEU and the potential rule of reason under Article 107(1) TFEU. This chapter shows how this form of integration is only possible under Article 10(3) TFEU and how the Commission prefers to exempt aid under Article 107(3)(c) TFEU. The chapter, finally, highlights the sophisticated proportionality test under Article 107(3) TFEU which can provide a model for other areas where balancing is needed. It therefore only suggests some modest improvements to the test based on the experiences in free-movement law.

This chapter shows that the first form of integration is possible under Article 107 TFEU although only to a very limited extent, specifically under Article 107(1) and 107(2) TFEU. Article 107(1) is first scrutinized and the defining elements of State aid are examined. The chapter shows the limited scope for integration in the market investor principle and the Altmark test. It develops an alternative reading of the selectivity and effect on competition criterion based on the polluter pays principle and the consistency test. The chapter also shows that for a narrow group of cases Article 107(2) TFEU can be used to achieve the first form of environmental integration.

The place of international law in dispute settlement by the United Nations (UN) Security Council is a topic which has already occasioned debate. Many lawyers contend that law plays a minimal role in the work of the Council. The Security Council may be a political body, but its role is defined by the UN Charter, which is a legal instrument, a treaty between nations. Further, Article 1 of the Charter declares a major purpose of the UN to be the resolution of disputes ‘in conformity with the principles of justice and international law’. What does it mean for a political body to act within a legal framework, and to have to provide solutions to disputes that are in conformity with the law? When we speak of law in the Security Council, we are really speaking of two things: law as it is invoked by the claimants to a dispute, and law as it is employed by the organ itself, when passing its decision.

This chapter traces the trajectory of ideas that emanated from the judiciary since the early 1950s. The ideational movement within the judiciary coincides with the first two phases. This chapter discusses significant judicial cases in which the Supreme Court has interpreted Article 19 (1) (a) of the Constitution of India as inherently containing the right to know. Initially ideas on openness from the judiciary emerged in a nascent form where the judicial verdicts established the linkage between the freedom of press and the importance of information flow and dissemination in a democracy. Later, the judiciary moved beyond the specifics of the press freedom and examined the question of openness in government affairs, challenging the nested norm of secrecy. This interpretation provides the link to the long-drawn process of emerging ideas on openness emanating from within the state.

Chapter 4 discusses preliminary issues relating to access to refugee status for stateless persons. It begins by considering the fundamental question of whether stateless persons should be protected per se under the 1951 Refugee Convention or whether they must meet the same criteria as those with a nationality, namely well-founded fear of being persecuted on a Convention ground. The chapter further provides guidance on establishing lack of nationality in the refugee status determination context and considers questions such as the determination of the country of reference, voluntary renunciation, and the imposition of nationality without consent, concluding with an examination of the meaning and interpretation of ‘country of former habitual residence’.

The WTO Appellate Body has ruled that products are ‘like products’ within the meaning of Article III:4 of the GATT if they directly compete in the market and that an imported product is accorded ‘less favourable treatment’ within the meaning of that provision if it is accorded less favourable competitive opportunities. Regulations that distinguish between different types of products and accord one of them less favourable treatment are typically adopted precisely because the market does not make the distinction that the regulator considers necessary. Many, if not most, internal regulations are thus likely to be inconsistent with Article III:4. The ten policy goals listed in Article XX of the GATT do not comprise many regulatory objectives, such as harmonizing standards, reducing transaction costs for consumers, or preventing deceptive practices. The Appellate Body’s market-oriented approach to Article III:4 therefore renders many legitimate regulations inconsistent with the GATT.

In the context of competition law the second form of preventative integration, balancing to prevent environmental degradation, might be seen as possible under Article 101(1) TFEU’s rule of reason, or under Articles 101(3) and 102 TFEU. However, this chapter discusses how the second form of preventative integration cannot and should not take place within the current framework competition law.

This chapter shows that preventative integration occurs neither within the current framework of Article 107(1) TFEU nor in the context of Article 107(2) and (3) TFEU. It is shown that the polluter-pays principle is not used for preventative integration but only for supportive integration. Thus Article 107(3)(b) can only offer the second form of integration.

This chapter illustrates that each national of a Member State shall be a Citizen of the Union (Articles 9 TEU and 20(1) TFEU). Citizenship of a modern European State comes with a range of well-recognized rights and duties. All States have different detailed frameworks, but the idea of the individual citizen’s intimate connection with, and expected allegiance to, his or her State is missing at the EU level. Articles 9 TEU and 20(1) TFEU also provide that Union citizenship ‘shall be additional to and not replace national citizenship’. It is but a supplement; though on a more positive note, EU citizenship strengthens State citizenship with a set of entitlements and protection that extend beyond that which can be provided at the national level. The chapter aims to provide an understanding of the scope of protection granted by EU law, as well as its relationship with national law.