Pub Date : 2016-10-12DOI: 10.1163/22112596-02102005
J. Reichel
There are two core principles in the law and ethics of biomedical research that could be considered universally accepted: first, all handling of personal data and human biological samples is conditioned by the informed consent of the individual involved; second, all medical research on human biological samples and personal data should be placed under the review of research ethics committees. These concepts are included in international, regional and national guidelines, rules and regulations for processing of data and biobanking. However, the legal implementations are carried out within each national legal order, by national organs enacting administrative decisions applicable within the state. In order for the research project to function in a multinational setting, the EU has developed soft law tools and governance mechanisms to facilitate European biomedical research. The question is whether this can be considered valuable and legitimate on the grounds of enhancing conditions for medical research.
{"title":"Alternative Rule-Making within European Bioethics – Necessary and Therefore Legitimate?","authors":"J. Reichel","doi":"10.1163/22112596-02102005","DOIUrl":"https://doi.org/10.1163/22112596-02102005","url":null,"abstract":"There are two core principles in the law and ethics of biomedical research that could be considered universally accepted: first, all handling of personal data and human biological samples is conditioned by the informed consent of the individual involved; second, all medical research on human biological samples and personal data should be placed under the review of research ethics committees. These concepts are included in international, regional and national guidelines, rules and regulations for processing of data and biobanking. However, the legal implementations are carried out within each national legal order, by national organs enacting administrative decisions applicable within the state. In order for the research project to function in a multinational setting, the EU has developed soft law tools and governance mechanisms to facilitate European biomedical research. The question is whether this can be considered valuable and legitimate on the grounds of enhancing conditions for medical research.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"21 1","pages":"169-192"},"PeriodicalIF":1.7,"publicationDate":"2016-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22112596-02102005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64565763","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-12DOI: 10.1163/22112596-02102007
V. V. Ramraj
Transnational regulatory power is increasingly exercised by bodies with no formal accountability to states, although such bodies affect the way individuals, organizations, and states themselves conduct their affairs. As a general rule, courts have been reluctant to engage with these transnational private regulators. This article argues that courts in Singapore and Canada are gradually, if haltingly, fashioning public law principles that enable them to judicially review decisions of domestic private regulators. These principles tend to focus not on the formal status of the body exercising power but on the nature of that power, essentially articulating a functional test. The article argues further that, as it has developed in Singapore and Canada, administrative law contains within it legal tools and principles that would enable courts to judicially review the decisions of transnational private regulators and allow them to play an important role in shaping the emerging norms that govern transnational regulation.
{"title":"Prospects for Judicial Review of Transnational Private Regulation: Singapore and Canada","authors":"V. V. Ramraj","doi":"10.1163/22112596-02102007","DOIUrl":"https://doi.org/10.1163/22112596-02102007","url":null,"abstract":"Transnational regulatory power is increasingly exercised by bodies with no formal accountability to states, although such bodies affect the way individuals, organizations, and states themselves conduct their affairs. As a general rule, courts have been reluctant to engage with these transnational private regulators. This article argues that courts in Singapore and Canada are gradually, if haltingly, fashioning public law principles that enable them to judicially review decisions of domestic private regulators. These principles tend to focus not on the formal status of the body exercising power but on the nature of that power, essentially articulating a functional test. The article argues further that, as it has developed in Singapore and Canada, administrative law contains within it legal tools and principles that would enable courts to judicially review the decisions of transnational private regulators and allow them to play an important role in shaping the emerging norms that govern transnational regulation.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"21 1","pages":"230-254"},"PeriodicalIF":1.7,"publicationDate":"2016-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22112596-02102007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64565811","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-12DOI: 10.1163/22112596-02102009
Nicola Jägers
The lecture ‘The Spirit of Laws is not Universal: Alternatives to the Enforcement Paradigm for Human Rights’ by Professor Abdullahi An-Na’Im goes to the heart of the human rights predicament. An-Na’Im offers a profound critique of the inadequacy of the current treaty-based state-centric enforcement paradigm and suggest a people-centered alternative, to human rights protection. The alternative proposed remains rather indistinct and raises several questions addressed in this commentary. Human rights enforcement is a much more complex interplay of transnational legal processes than portrayed. It is argued that international human rights law is gradually evolving towards a more complex, multifarious landscape than that of the established, one-dimensional state-centered paradigm. Moreover, agreeing with the need for a paradigm shift away from the state as the conventional duty-bearer it is suggested that this should go beyond political power to include economic power.
{"title":"Human Rights Enforcement Towards a People-Centered Alternative? A Reaction to Professor Abdullahi An-Na’im","authors":"Nicola Jägers","doi":"10.1163/22112596-02102009","DOIUrl":"https://doi.org/10.1163/22112596-02102009","url":null,"abstract":"The lecture ‘The Spirit of Laws is not Universal: Alternatives to the Enforcement Paradigm for Human Rights’ by Professor Abdullahi An-Na’Im goes to the heart of the human rights predicament. An-Na’Im offers a profound critique of the inadequacy of the current treaty-based state-centric enforcement paradigm and suggest a people-centered alternative, to human rights protection. The alternative proposed remains rather indistinct and raises several questions addressed in this commentary. Human rights enforcement is a much more complex interplay of transnational legal processes than portrayed. It is argued that international human rights law is gradually evolving towards a more complex, multifarious landscape than that of the established, one-dimensional state-centered paradigm. Moreover, agreeing with the need for a paradigm shift away from the state as the conventional duty-bearer it is suggested that this should go beyond political power to include economic power.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"21 1","pages":"275-283"},"PeriodicalIF":1.7,"publicationDate":"2016-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22112596-02102009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64565896","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-12DOI: 10.1163/22112596-02102002
A. Meuwese, P. Paiement
This introduction explores the underlying question addressed in each of the contributions to this special issue: what impact does the use of general administrative governance principles and processes by hybrid and transnational private regulatory bodies have on ‘transnational administrative law doctrine’? The importance of this inquiry arises out of the growing role that such regulatory bodies play, despite their lack of formal competence, in introducing principles and procedures of general administrative nature into their respective sector. The hypothesis is that these ‘horizontal’ – due both to the absence of formal hierarchy as well as their cross-sector applicability – administrative norms and procedures undergo transformations as the regulatory bodies formulate them for their particular fields. By pursuing this hypothesis across a number of different case studies, the contributions to this special issue develop both transnational private regulation and global administrative law scholarship by mapping normative transformations that occur in their mutual intersections.
{"title":"Horizontal Transformations in Administrative Norms and Procedures: An Introduction","authors":"A. Meuwese, P. Paiement","doi":"10.1163/22112596-02102002","DOIUrl":"https://doi.org/10.1163/22112596-02102002","url":null,"abstract":"This introduction explores the underlying question addressed in each of the contributions to this special issue: what impact does the use of general administrative governance principles and processes by hybrid and transnational private regulatory bodies have on ‘transnational administrative law doctrine’? The importance of this inquiry arises out of the growing role that such regulatory bodies play, despite their lack of formal competence, in introducing principles and procedures of general administrative nature into their respective sector. The hypothesis is that these ‘horizontal’ – due both to the absence of formal hierarchy as well as their cross-sector applicability – administrative norms and procedures undergo transformations as the regulatory bodies formulate them for their particular fields. By pursuing this hypothesis across a number of different case studies, the contributions to this special issue develop both transnational private regulation and global administrative law scholarship by mapping normative transformations that occur in their mutual intersections.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"21 1","pages":"101-115"},"PeriodicalIF":1.7,"publicationDate":"2016-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22112596-02102002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64565702","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-12DOI: 10.1163/22112596-02102008
A. An-Na’im
Drawing on the contested legacy of Montesquieu in The Spirit of the Laws, this essay questions the efficacy of state-centric legality in the enforcement of human rights, and proposes an alternative approach of cultural transformation and political mobilization. The author begins by exploring whether Montesquieu’s thought may have inspired European powers to seek to impose his model of the nation-state and its positive laws through global colonial projects. Second, the author discusses the structural inadequacy of the current treaty-based state-centric enforcement paradigm while highlighting the viability of a universally realistic alternative of cultural transformation and political mobilization for the implementation of consensus-based human rights norms. Third, the author explores his proposed people-centered alternative to the state-centric enforcement model for human rights. This paradigm shift is necessary because the current legalistic approach has totally failed in providing any protection of human rights for the vast majority of humanity around the world.
{"title":"The Spirit of Laws is Not Universal: Alternatives to the Enforcement Paradigm for Human Rights","authors":"A. An-Na’im","doi":"10.1163/22112596-02102008","DOIUrl":"https://doi.org/10.1163/22112596-02102008","url":null,"abstract":"Drawing on the contested legacy of Montesquieu in The Spirit of the Laws, this essay questions the efficacy of state-centric legality in the enforcement of human rights, and proposes an alternative approach of cultural transformation and political mobilization. The author begins by exploring whether Montesquieu’s thought may have inspired European powers to seek to impose his model of the nation-state and its positive laws through global colonial projects. Second, the author discusses the structural inadequacy of the current treaty-based state-centric enforcement paradigm while highlighting the viability of a universally realistic alternative of cultural transformation and political mobilization for the implementation of consensus-based human rights norms. Third, the author explores his proposed people-centered alternative to the state-centric enforcement model for human rights. This paradigm shift is necessary because the current legalistic approach has totally failed in providing any protection of human rights for the vast majority of humanity around the world.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"21 1","pages":"255-274"},"PeriodicalIF":1.7,"publicationDate":"2016-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22112596-02102008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64565854","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-12DOI: 10.1163/22112596-02102004
P. Paiement
This article concerns the role of the ISEAL Alliance in formulating and enforcing administrative governance principles and procedures among sustainability standard-setting bodies. By utilizing the frameworks of meta-regulation and global administrative law, this article assesses whether ISEAL has been able to develop a regulatory capacity in practice. After first categorizing administrative governance norms found in these codes as ‘participatory’, ‘transparency’, or ‘reasoned decision-making’, this article offers an empirical analysis of the experiences of ISEAL’s members with respect to participation drivers, code compliance, their roles in writing the codes, and concerns about the future developments in ISEAL. In light of this empirical analysis, it is suggested that ISEAL’s regulatory capacities have been overstated. Finally, a growing emphasis on the impacts of sustainability standards is discussed in relation to problems it raises for the future significance of administrative governance principles and the accountability of sustainability standard-setting bodies.
{"title":"iseal Alliance and the Administrative Governance of Transnational Sustainability Standards","authors":"P. Paiement","doi":"10.1163/22112596-02102004","DOIUrl":"https://doi.org/10.1163/22112596-02102004","url":null,"abstract":"This article concerns the role of the ISEAL Alliance in formulating and enforcing administrative governance principles and procedures among sustainability standard-setting bodies. By utilizing the frameworks of meta-regulation and global administrative law, this article assesses whether ISEAL has been able to develop a regulatory capacity in practice. After first categorizing administrative governance norms found in these codes as ‘participatory’, ‘transparency’, or ‘reasoned decision-making’, this article offers an empirical analysis of the experiences of ISEAL’s members with respect to participation drivers, code compliance, their roles in writing the codes, and concerns about the future developments in ISEAL. In light of this empirical analysis, it is suggested that ISEAL’s regulatory capacities have been overstated. Finally, a growing emphasis on the impacts of sustainability standards is discussed in relation to problems it raises for the future significance of administrative governance principles and the accountability of sustainability standard-setting bodies.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"21 1","pages":"144-168"},"PeriodicalIF":1.7,"publicationDate":"2016-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22112596-02102004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64565756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-03-24DOI: 10.1163/22112596-02101004
E. Doig
According to the Montevideo Convention on Rights and Duties of States, among other criteria, a state must possess a defined territory. This paper considers how the scope of international law addresses the issue of threatened sovereignty of island states, which may soon no longer possess territory as a result of rising sea levels due to climate change. The situation in Tuvalu, the Maldives, and Kiribati is considered as three of the many islands dealing with the effects of climate change. This paper finds that the current state of the art of international environmental law and human rights law has limited utility in protecting these states’ sovereignty. Artificial islands, land acquisition, and individual or collective resettlement are discussed as possible ways forward.
{"title":"What Possibilities and Obstacles Does International Law Present for Preserving the Sovereignty of Island States","authors":"E. Doig","doi":"10.1163/22112596-02101004","DOIUrl":"https://doi.org/10.1163/22112596-02101004","url":null,"abstract":"According to the Montevideo Convention on Rights and Duties of States, among other criteria, a state must possess a defined territory. This paper considers how the scope of international law addresses the issue of threatened sovereignty of island states, which may soon no longer possess territory as a result of rising sea levels due to climate change. The situation in Tuvalu, the Maldives, and Kiribati is considered as three of the many islands dealing with the effects of climate change. This paper finds that the current state of the art of international environmental law and human rights law has limited utility in protecting these states’ sovereignty. Artificial islands, land acquisition, and individual or collective resettlement are discussed as possible ways forward.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"21 1","pages":"72-97"},"PeriodicalIF":1.7,"publicationDate":"2016-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22112596-02101004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64565549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-03-24DOI: 10.1163/22112596-02101005
E. V. Vugt
{"title":"Climate Change: Does Law Play A Role?","authors":"E. V. Vugt","doi":"10.1163/22112596-02101005","DOIUrl":"https://doi.org/10.1163/22112596-02101005","url":null,"abstract":"","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"21 1","pages":"1-4"},"PeriodicalIF":1.7,"publicationDate":"2016-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22112596-02101005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64565624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-03-24DOI: 10.1163/22112596-02101003
L. Omuko
One of the challenges of climate change litigation is the difficulty of linking particular climate change impacts to emissions from a specific source, referred to as the proof problem . The difficulty is mainly caused by scientific uncertainties and gaps in evidence, which has been exploited by defendants seeking to deny that their emissions can be linked to specific impacts. The paper argues that application of precautionary principle , which requires decision-maker to take measures to prevent harm even where there is no conclusive scientific evidence, could be used to respond to the proof problem . It discusses how the principle can be used to hold entities and public authorities liable in climate change litigation. It provides a background of the principle, how it has been applied in litigation and how the application can be extended to climate change liability. It includes a discussion of climate related cases which have applied this principle to provide insights on how courts have applied the principle.
{"title":"Applying the Precautionary Principle to Address the “Proof Problem” in Climate Change Litigation","authors":"L. Omuko","doi":"10.1163/22112596-02101003","DOIUrl":"https://doi.org/10.1163/22112596-02101003","url":null,"abstract":"One of the challenges of climate change litigation is the difficulty of linking particular climate change impacts to emissions from a specific source, referred to as the proof problem . The difficulty is mainly caused by scientific uncertainties and gaps in evidence, which has been exploited by defendants seeking to deny that their emissions can be linked to specific impacts. The paper argues that application of precautionary principle , which requires decision-maker to take measures to prevent harm even where there is no conclusive scientific evidence, could be used to respond to the proof problem . It discusses how the principle can be used to hold entities and public authorities liable in climate change litigation. It provides a background of the principle, how it has been applied in litigation and how the application can be extended to climate change liability. It includes a discussion of climate related cases which have applied this principle to provide insights on how courts have applied the principle.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"1 1","pages":"52-71"},"PeriodicalIF":1.7,"publicationDate":"2016-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22112596-02101003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64565534","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-03-24DOI: 10.1163/22112596-02101002
R. Johnston
The exacerbation of climate change effects has rendered the legal adaptation of granting future generations standing in climate change litigation, necessary to achieve intergenerational justice and to protect their human rights. International law and norms do not operate in a legal vacuum. Instead, they possess the evolutionary quality to respond to societal shifts specifically seen in climate change action. This transient quality is greatly questioned in the debate surrounding the current legal lacuna concerning the lack of legal recognition for future generations in climate change actions. This has consequential effects on intergenerational justice and their human rights. Whilst international law has implemented a number of climate change mitigation strategies, these are insufficient in protecting future generations. The granting of standing in climate change litigation adequately complements the current approaches in resolving the lacuna in the law between theory and practice.
{"title":"Lacking Rights and Justice in a Burning World: The Case for Granting Standing to Future Generations in Climate Change Litigation","authors":"R. Johnston","doi":"10.1163/22112596-02101002","DOIUrl":"https://doi.org/10.1163/22112596-02101002","url":null,"abstract":"The exacerbation of climate change effects has rendered the legal adaptation of granting future generations standing in climate change litigation, necessary to achieve intergenerational justice and to protect their human rights. International law and norms do not operate in a legal vacuum. Instead, they possess the evolutionary quality to respond to societal shifts specifically seen in climate change action. This transient quality is greatly questioned in the debate surrounding the current legal lacuna concerning the lack of legal recognition for future generations in climate change actions. This has consequential effects on intergenerational justice and their human rights. Whilst international law has implemented a number of climate change mitigation strategies, these are insufficient in protecting future generations. The granting of standing in climate change litigation adequately complements the current approaches in resolving the lacuna in the law between theory and practice.","PeriodicalId":38415,"journal":{"name":"Tilburg Law Review-Journal of International and Comparative Law","volume":"21 1","pages":"31-51"},"PeriodicalIF":1.7,"publicationDate":"2016-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/22112596-02101002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64565936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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