Hague Convention Research Articles

International humanitarian law as a result of challenges of armed conflicts

The study is devoted to the analysis of the evolution of international humanitarian law in the context of the protection of human rights and freedoms during armed conflicts. The historical development of legal norms is considered, starting from the early attempts to regulate military operations to the formation of the modern system of international law. Special attention is paid to three key areas of development of international humanitarian law: Geneva, Hague and New York. The Geneva Conventions of 1949 and additional protocols to them, which became the foundation for the protection of war victims, are analyzed in detail. The Hague Conventions of 1899 and 1907, which established the rules of warfare and the principles of peaceful resolution of conflicts, are considered. The role of the UN in the development of international law is highlighted, in particular through the adoption of resolutions and the holding of international conferences. The work emphasizes the importance of creating universal standards for the protection of human rights and their consolidation at the level of international law. Key international documents such as the Universal Declaration of Human Rights, International Covenants on Human Rights and European Conventions are analyzed. The study reveals the process of integration of various aspects of humanitarian law, which led to the formation of a comprehensive approach to the regulation of armed conflicts. There is a growing understanding of the relationship between human rights, the rules of war and the protection of civilians. Particular attention is paid to modern challenges in the field of human rights protection during armed conflicts, in particular in the context of the Russian-Ukrainian war. Ukraine’s efforts to adapt national legislation to the conditions of armed conflict and the implementation of international norms are considered. The study emphasizes the need for continuous improvement of mechanisms for the protection of human rights in the conditions of armed conflicts and adaptation of international law to the new realities of warfare. The work is important for understanding the current state of international humanitarian law and the prospects for its development.

Documentation of crimes against cultural heritage of Ukraine: main projects and initiatives with the support of civil society

The article analyzes the projects initiated and implemented by the public, related to the documentation of crimes against the national cultural heritage (NCH) of Ukraine in the conditions of a full-scale Russian invasion. It is noted that the activity of public organizations in documenting crimes against the Ukrainian National Security Service is conditioned by the need to form a single database of crime records of the Russian Federation, which will allow solving a number of issues that will become urgent after the end of hostilities. The classification of motives for crimes against cultural values in conditions of armed conflict is presented; the ways of accounting for cultural heritage and the principles of documenting damage to cultural heritage are outlined. It is emphasized that there is no National Blue Shield Committee in Ukraine, which is being created with the support of the Blue Shield International (BSI) by the decision of four other committees: the International Council of Museums (ICOM), the International Council for the Protection of Monuments and Historic Sites (ICOMOS), International Federation of Library Associations and Institutions (IFLA). Within the scope of the powers of the official representative of the International Federation of Library Associations and Institutions in Ukraine, the NPA "Ukrainian Library Association", together with the official representative in Ukraine of the International Archives Committee, the State Archives Service of Ukraine, once again raised the issue of the creation of the Committee and joined the development of its charter. And although the creation of such a representation in Ukraine does not guarantee protection from Russian vandalism, the international experience of involving non-governmental organizations, representatives of authorities, cultural heritage protection bodies, the State Emergency Service, the National Police, and the Prosecutor's Office in the mission to assess the damage to the NCH in the conditions of the Russian-Ukrainian war will enable in the future, to achieve fair decisions on the implementation of the Hague Convention and to receive funding for the restoration of cultural values.

The ‘Manifest Injustice’ Clause in Article 4 of the Hague Convention on Private International Law: Applicability in International Commercial Contract Disputes

This paper critically examines the ‘manifest injustice’ clause in Article 4 of the Hague Convention on Choice of Court Agreements, focusing on its applicability in international commercial contract disputes. The clause serves as a safeguard to ensure fairness in choice of court agreements by allowing courts to set aside agreements that result in unjust outcomes for one of the parties. The paper explores various contexts in which this clause applies, such as situations involving unequal bargaining power, fraud, duress, coercion, procedural injustice, and unconscionable terms. It also discusses the significant legal challenges associated with its application, including the lack of a clear definition, variability in judicial interpretation, conflicts with the principle of party autonomy, and evidentiary burdens. The paper concludes that while the ‘manifest injustice’ clause is a critical tool for promoting fairness in international commerce, its effectiveness depends on the development of clearer guidelines and more consistent jurisprudence to harmonize its interpretation across jurisdictions, thereby enhancing its role in ensuring justice and equity in cross-border contractual relationships.

Comparative Study of Categories Protected During Armed Conflict in Islamic Law and International Humanitarian Law

Islam has emerged in the Arabian Peninsula as a universal human religion that advocates virtue, humanity, and compassion. Isalm has established detailed rules for protecting civilians and civilian targets during armed conflicts. The Islamic Shari'a rules recommended compassion for enemies, not over-killing them, and refraining from any act contrary to the provisions of the Islamic Shari'a. Islamic Shari'a, through its sources, such as the Holy Quran and the Prophet's Sunna, has established rules protecting the victims of war to decide on humanitarian provisions that are already considered for all humanitarian principles relating to the protection of victims of armed conflict and civilians who are not involved in such conflicts, i.e., non-combatants in general. Since the end of the nineteenth century and during the twentieth century, after World and regional wars have caused terrible humanitarian disasters from killing, displacement, torture, and other inhumane treatment, the world's peoples and States have been alerted to the need to establish rules protecting specific groups during armed conflicts, culminating in the international conventions, most notably the Hague Conventions 1899-1907, the four Geneva Conven Conventions of 1949 and the two Protocols 1977 annexed to it. This paper addresses “the categories Protected during armed conflicts in the Islamic Shari'a and those protected in international humanitarian law by reviewing what has been recognized in the Islamic Shari'a for the protection of specific categories during armed conflict and what has been dealt with in the international conventions.

Hague choice of court convention: current state of affairs and application issues

The article provides a scientific and practical analysis of international legal aspects relating to the issue of determining the exclusive jurisdiction of a dispute by means of a choice of court agreement, which is quite relevant, since the ratification of the relevant Convention, which was signed in 2014, took place during the martial law regime, which complicates the process of implementing the provisions of the Convention in the Ukrainian legal system. The author analyses the current Ukrainian legislation in the area of determining the jurisdiction of private law relations with a foreign element, in particular, proceedings in cases related to the jurisdiction determination procedure, and international documents in the area of choice of court agreements, such as the Laws of Ukraine «On International Private Law», «On Amendments to Certain Legislative Acts of Ukraine in connection with the Ratification of the Convention on Choice of Court Agreements», the Hague Convention on Choice of Court Agreements and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The author identifies certain problems of enforcement of the choice of court agreement in the judicial system of Ukraine and issues of procedural protection of the parties to the agreement. It is noted that currently there is no definition of an exclusive choice of court agreement in national legislation and there are problems in the enforcement of a Ukrainian court decision by other states where no agreement on legal assistance has been concluded. The difficulty of applying the Convention on Choice of Court Agreements in comparison with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards has been proven, which may lead to differences in the practice of use among the countries that are parties to the Convention. The author identifies the need to expand Article 4-1 of the Law of Ukraine «On Private International Law» and improve the implementation of disputes involving an exclusive choice of court agreement. The author emphasises the need to resolve problematic issues, as this will positively affect the international legal image of the state and prepare further legislative changes for more effective synthesis of the legal systems of Ukraine and the EU member states.

TO THE ISSUE OF PROTECTING THE RIGHTS OF CHILDREN IN THE CONDITIONS OF MARTIAL LAW

The aim. The purpose of this study is to conduct an analysis of violations of children's rights in the context of armed conflict on the territory of Ukraine in order to determine ways to improve the regulatory and legal mechanisms for their protection. Materials and methods. To achieve the goal of the work, general scientific and special methods of scientific knowledge are used. The formal-legal method was applied to the analysis of legal acts regulating the protection of children's rights. Thanks to the application of this method, the formulation of legal norms, their legal technique, the conceptual and categorical apparatus was studied in order to clarify the content and essence of regulation, and the norms of international and national law were determined to identify gaps, collisions, and contradictions. The method of statistical analysis made it possible to determine the dynamics of the number of cases of abduction of children or their adoption. Results. During the research, it was established that russian aggression against Ukraine is accompanied by systematic violations of international law aimed at protecting the rights of the child, in particular the UN Convention on the Rights of the Child, the Geneva Conventions, and The Hague Conventions. According to the data of international monitoring missions, in the temporarily occupied territories of Ukraine numerous facts of violation of children's rights to life, protection from torture, personal integrity, dignity, safety, as well as rights to protection from sexual violence have been recorded. In addition, children are deprived of safe conditions for life, healthy development and realization of the right to education. Such systemic violations require an urgent response by the international community in the form of strengthening preventive measures to prevent further violations of childhood rights. Conclusions. As a result of the full-scale invasion and occupation of part of the territory of Ukraine, the number of cases of violation of children's rights has increased significantly. In particular, this concerns violations of the rights to life, personal integrity, protection of dignity, the right to protection from sexual violence and a number of others. Based on this, the problem of protecting children's rights is of great importance and determines the need to improve the existing mechanisms of legal protection at the national and international levels.

Conceptual and Juridical Review of the Destruction of Cultural Property in the Ukraine - Russia War

The ongoing conflict between Ukraine and Russia has witnessed numerous war crimes, notably the destruction of cultural property belonging to Ukraine, despite international protections afforded to such sites. This paper undertakes a conceptual and juridical review of the protection of cultural property during armed conflict, specifically examining its application in the context of the Ukraine-Russia war. Employing a doctrinal research method, the study elucidates the significance of safeguarding cultural heritage, which is deemed a global inheritance. The analysis emphasizes the provisions outlined in the 1954 Hague Convention, which governs the protection of cultural property, and explores the respective responsibilities of Ukraine and Russia in addressing instances of cultural destruction. By evaluating these legal frameworks and their application, this research contributes to understanding the obligations and challenges related to preserving cultural heritage amidst contemporary armed conflicts, advocating for adherence to international norms and facilitating mechanisms for resolution and accountability.

The Hague Convention and Its Impact on Women’s Rights and Children’s Rights: An Indian Perspective

The aim of this article is to critically examine the universalisation of treaties such as the Hague Convention to highlight the tension it brings out between women’s rights and children’s rights by blindsiding gender-related issues and cultural realities. Written in the context of Ariha Shah in Germany and the Bhattacharya case in Norway, this article aims to map the landscape of international child abduction and repatriation attempts by parents in India, as well as the Indian legislative attempt to tackle the issue of abduction through the draft of the Civil Aspects of International Parental Abduction Bill, 2016 . Viewed critically through a child rights perspective, the article considers whether the positioning of the Abduction Bill from a feminist viewpoint does justice to the agency of children involved, and makes recommendations on how their position can be strengthened further.

The history of the establishment of organs for fact-finding in the resolution of international disputes

The paper traces the historical background of the formation and development of the institution of international fact-finding. As a result of the progressive development of international law, the institution of international investigation emerged at the turn of the 19th and 20th centuries, first receiving its international legal consolidation in the Hague Convention on the peaceful settlement of international disputes of 1899. The history of establishing fact-finding bodies by states, which acted as parties to disputes based on factual issues, both at the universal and regional levels, is examined. The practice of resorting to investigation procedures within international intergovernmental organizations such as the League of Nations, the UN, ILO, ICAO, the World Bank, the EU, and others is considered. In the modern period of international law, the fact-finding procedure has gained quite extensive use and is implemented in a more primitive form, especially within the activities of the United Nations. The UN establishes international commissions (composed mainly of individuals who are not citizens of the parties to the dispute or participants in the situation) authorized, as often happens, not only to establish facts (conduct investigations) but also endowed with broad competence to provide conclusions on legal issues and recommendations for dispute resolution or situation. The UN also uses the international investigation procedure in conjunction with other international mechanisms for dispute resolution. Referring to international bodies for fact-finding, as one of the means of peaceful settlement of international disputes, was first provided for by the Hague Conventions on the peaceful settlement of international disputes of 1899 and 1907. Therefore, the existence of various nature international investigating commissions - from "pure" fact-finding in the Tigre case to investigations regarding the Red Cross and the Letellier and Moffitt case, which were close to arbitration.

Realpolitik in Global Governance: Understanding the Competing Realist and Cosmopolitan Narratives of the Nineteenth Century Era of International Law

Realpolitik in Global Governance: Understanding the Competing Realist and Cosmopolitan Narratives of the Nineteenth Century Era of International Law

Can private parties contract out of the Hague Service Convention?

Treaties are concluded by States but often impose rights and obligations directly upon private parties. Can private parties contract out of a treaty including States’ oppositions without explicit permissions granted by the treaty? The complexity between party autonomy and State sovereignty is reflected in recent cases and unsettled debates regarding the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters of November 15, 1965 (“HSC”). The HSC contains a large number of oppositions made by 65 Contracting States including China, Germany, India, and Singapore. Combining public and private international law, this paper aims to explore the correlative relationship between party autonomy and State sovereignty in applying the HSC.

Instances of Biowarfare in World War I (1914-1918).

During World War I (WWI), also referred to as 'The Great War,' Germany implemented a pioneering biowarfare program as part of a broader military strategy to undermine Allied forces by targeting their logistical and supply capabilities. This initiative, unprecedented in its systematic and strategic application, utilized a variety of pathogens, primarily targeting animal populations, to disrupt support systems without contravening international laws, specifically the 1907 Hague Convention. The operations, shrouded in secrecy and largely led by the German General Staff, included sophisticated sabotage actions against both enemy and neutral states. The allegations and usage of bioweapons increased the interest of the Great Powers in further developing their own biowarfare program.

Legal regulation of combating child abduction in international family law

The obligation of states in accordance with the Convention on the Civil and Legal Aspects of International Child Abduction to carry out the immediate return of the child is not always effectively implemented due to the procedural defects of the Convention [1], which is confirmed by the practice of its application at the international level. Based on the analysis of the rulings of the European Court of Human Rights, some procedural gaps of the Hague Convention of 1980 [4] are investigated and ways to solve them are proposed. Today, in the conditions of war, solving the issue of child abduction is an urgent necessity not only in Ukraine, but in many European countries. Every year, the statistics of child abduction crimes are increasing in all countries of the world. The issue of non-implementation of foreign court decisions by countries is one of the biggest problems today. In order to fulfill the obligations imposed by the Convention of 1980, the states are obliged to create competent bodies and adopt legislation corresponding to the norms of the Convention. Actualization of children’s rights in the modern world is becoming one of the key tasks of every country. Application of international documents regulating procedural issues of cross-border child abduction in the countries of the European Union as an example for other countries. Regulation of the situation that provoked the international abduction of children also by the norms of international procedural law as an additional set of measures aimed at the fastest return of the child to his usual life, a simplified and shortened procedure for obtaining the status quo. There is an exclusive opinion in the world that in the absence of crimes related to the abduction or trafficking of children, relations regarding the return of children should be regulated only at the international level by concluding international treaties.

Preservation of Cultural Sites and Artifacts During Wartimes

ABSTRACT This article is an overview of some of the foreign policies implemented regarding cultural heritage protection during wartimes, with specific focus on the Gulf Wars in Iraq and the ongoing conflict in Ukraine. This article follows historical examples prior and post-World War II, noting pertinent international laws such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The author also highlights current technological advances that are being implemented to help survey and better understand the destruction of cultural sites. This article argues for an increased focus on cultural heritage protection and preemptive measures that should be put in place by cultural institutions to protect their heritage. Information professionals are stewards of cultural heritage and part of their mission should be disaster-preparedness to best preserve artifacts and heritage sites.

Jurysdykcja krajowa i prawo właściwe na tle konwencji haskiej o ochronie dorosłych z 2000 r. oraz projektu uzupełniającego rozporządzenia unijnego z 2023 r.

The subject of the considerations are drafts of: the EU regulation on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults, as well as the decision to authorize EU Member States to accede to the 2000 Hague Convention on the protection of adults concerning cross-border personal and care matters. The documents dated May 31, 2023 refer not only to the legal status of a person (e.g. partial incapacitation, guardianship, assistance in performing legal actions or functionally similar institutions under foreign law), but also the effects on civil law contracts with third parties (including rights and obligations within legal transactions). Detailed comments are presented about “measures of protection” for adults in legal transactions with foreign countries. The 2000 Hague Convention raises reflections on current trends in the sources of international civil procedure and private international law. They include, among others, the planned co-existence of the Hague convention and the EU “Brussels” and “Rome” regulations. The attempt to increase the number of parties to the convention and the participation of EU Member States generally deserve a positive assessment, which also means the ratification of the 2000 Hague Convention by Poland. However, some doubts are cast by the intention for simultaneous modification through an EU regulation. The idea of a draft EU regulation of 2023, intended to supplement and modify an international agreement for the needs of a regional economic integration organization, could prima facie be assessed positively. However, a detailed look at the draft regulation of 2023 leads to the conclusion that it should be corrected, as it partly contains provisions that are both desirable for judicial cooperation between Member States and solutions that are unnecessary or questionable. In particular, the proposed solution allowing for an unlimited choice of jurisdiction may raise doubts. It is not intended — as is typically the case in personal civil matters — that a jurisdiction can be chosen from among states that are in some way related to the adult’s current or future situation (e.g. by citizenship, location of assets, past or future residence, circumstances relating to the guardian or curator). Thus, a country (and law) may be chosen that are completely unrelated to the actual situation. Additionally, the proposed Articles 6—7 are not compatible with the conventional catalog of circumstances that determine the transfer of jurisdiction, nor with the conflict of law rules (Article 15), which provide for the choice of the applicable law in a narrower range of situations (citizenship, previous habitual residence, location of property). Under the proposed EU regulation the indirect possibility of choice of foreign law is possible through the choice of foreign jurisdiction. This makes it possible to achieve a substantive legal effect by the adult “selecting” the substantive law that he or she deems desirable at the time of choice, thus completely departing from the remaining provisions of the Convention and the Regulation in terms of jurisdiction and applicable law. There is no limitation to such an indirect choice from the perspective of the interests of third parties with whom the adult has personal or property relations. Moreover, such a solution may mean, in practice, a departure from the basic substantive legal principles of the country in which a given adult lives (habitually resides) or is a citizen, in favor of accepting the consequences resulting from a distant fact (i.e. unrelated to the actual situation) and legally (i.e. providing for axiologically different solutions concerning the broad category of ‘measures of protection’) of given law and state. Taking into account the variants of legislative action described in the impact assessment report (document 10108/23ADD), it would be worth postulating a change to the proposed method of legislative action. It seems more rational to temporally distinguish the two planned activities (projects) under option 4. First, take steps to join the 2000 Hague Convention and gather several years of experience in its operation, also between Member States. And then, in the longer term, taking into account the experience of applying the convention on the territory of the EU, consider supplementing or modifying intra-EU judicial cooperation in these matters. The longer experience of applying the 2000 Hague Convention can — firstly — verify the thesis about the need to improve its functioning, and secondly — determine precisely in which areas it would be desirable for the welfare of adults and their guardians in cross-border cases.

The Contemporary Foster Care Legislative Framework in Greece: A Review of its Assets and Weaknesses

This review comprehensively analyzes the contemporary Greek legislative foster care system according to N4538/2018, exploring all the relevant international agreements such as the United Nations Convention on the Rights of the Child and the European Union's Charter of Fundamental Rights, that influenced its enactment. It highlights the rights and protection afforded to children in foster care, detailing provisions from the Hague Convention on the Rights of the Child and European legislation. It explores thoroughly the recent legislative reforms in Greece, including the establishment of the National Council for Foster Care and Adoption. It emphasizes the development and adherence to National and Special Registers for minors in the modern Child Protection System, as well as the implementation of Individual Family Rehabilitation Plans. It reveals that the recent legislation framework has many advantages but also a few weaknesses that could be amended. The legal procedures and criteria for placing minors in fostering in Greece, and the required criteria to ensure that foster parents meet the necessary guidelines to protect the best interests of children are discussed. This paper also examines the legal and procedural steps required to link children to foster families, the arrangements for supervision of foster parents and the consequences of fostering in cases of non-compliance. It is also proven that social workers play a key role in all stages and procedures of the application of the institution of foster care since they have taken up the main responsibilities for its implementation, prior, during and after the children are placed in foster parents. The article concludes that there is an imperative need for informed policies and practices that will ensure the adequate care and protection of minors in the foster system, recommending a synergy of legal, institutional, and educational strategies to optimize the welfare of foster children and support foster parents.

The Legal Practices and Challenges of Parental Authority, Custody, and Child Welfare Protection in Divorce Cases Under German Family Law

This paper examines the intricacies and challenges inherent in the German legal system’s approach to parental authority, custody, and child welfare within the context of divorce proceedings. Grounded in the principles of the Bürgerliches Gesetzbuch (BGB), the review explores the commendable commitment of German family law to the welfare and best interests of children during the tumultuous process of divorce. Through a critical lens, it delves into the dynamic interplay between joint and sole custody arrangements, the pivotal role of children’s voices in judicial decisions, and the enforcement of custody and visitation rights. Additionally, the paper scrutinizes the complex landscape of international custody disputes, emphasizing the necessity for nuanced interpretation and application of the Hague Convention on the Civil Aspects of International Child Abduction. Comparative analysis with international norms, particularly the UN Convention on the Rights of the Child, unveils areas of alignment and divergence, spotlighting opportunities for enhancing cross-border cooperation and ensuring a child-centered approach in custody disputes. Proposals for reform are articulated, advocating for structured mechanisms to integrate children’s perspectives, standardized assessments of the child’s best interest, and strategies for the effective enforcement of custody orders. Emphasizing the importance of domestic reforms and international collaboration, the review argues for ongoing evaluation and adaptation of legal practices to better protect children’s interests amid evolving family dynamics and global challenges.

A Comparative Study of Identification and Implementation of Foreign Judgments in Civil and Commercial Matters in Iranian Law and the Hague Convention of 1971

A Comparative Study of Identification and Implementation of Foreign Judgments in Civil and Commercial Matters in Iranian Law and the Hague Convention of 1971

The Language Barrier: Can the ICC Prosecute Chemical Warfare?

ABSTRACT: International law has come a long way in outlawing chemical weapon usage during warfare. From the 1907 Hague Convention to the 1997 Chemical Weapons Convention, there exists a comprehensive and mostly successful prohibition and verification regime for chemical weapons. However, the advent of modern warfare in recent conflicts in Syria and in Ukraine demonstrates compliance control is severely lacking for this form of weaponry. Consequently, there is no comprehensive accountability framework for international humanitarian law violations in the form of chemical weapon usage. Without explicit language criminalizing it, this heinous form of war crime ends up slipping under the radar. This article explores these jurisdictional gaps in both international and non-international armed conflicts and recommends ways the international community should cement its commitment to penalizing chemical weapon utilization.

The Hague Convention on the Recognition of Divorces and Legal Separations 1970: an effective mechanism for regulating divorce as between the UK and the EU post-Brexit?

Abstract This article examines the potential of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations to act as a replacement for Brussels IIa in regulating international divorce as between the UK and the EU. The article proceeds in two steps: first, there is a doctrinal analysis of the 1970 Hague Convention and of its merits and demerits by comparison with Brussels IIa, and secondly, there is a discussion of empirical research undertaken at the University of Aberdeen in conjunction with partner universities in six EU Member States, examining the practical utility of the Convention in Contracting States, and the treatment of international divorce in non-Contracting States. Insofar, as the 1970 Hague Convention is currently applicable in only 12 out of the 27 EU Member States, the article also discusses the likelihood of EU-wide adoption of the Convention. The article concludes that the 1970 Hague Convention has aged relatively well and, on the whole, offers a satisfactory alternative mechanism for the regulation of international divorce in the UK-EU context; however, the article also acknowledges the liberalism of many existing national laws on divorce recognition, suggesting that EU-wide adoption (if it occurs) might not have a very significant impact.