Legal theorists have historically levied critiques of international law’s status as law or as a legal system, contrasting it with the paradigm of municipal legal systems. However, this jurisprudential position is not necessarily sound, and empirical research tends against a sharp distinction between the two modes of law. This article uses both jurisprudential and empirical lenses to analyse and contest critiques of international law’s status as a legal system. It focuses in particular on the emergent climate governance regime and the Paris Agreement as a potential gold standard for a consensus-driven international legal order. It argues that, far from being a poor imitation of a legal system, international law may actually represent the state of the art and act as an exemplar for municipal legal systems.
{"title":"The Paris Agreement as a paradigm shift in international law: the view from empirical legal studies*","authors":"Antara Haldar","doi":"10.4337/cilj.2023.01.02","DOIUrl":"https://doi.org/10.4337/cilj.2023.01.02","url":null,"abstract":"Legal theorists have historically levied critiques of international law’s status as law or as a legal system, contrasting it with the paradigm of municipal legal systems. However, this jurisprudential position is not necessarily sound, and empirical research tends against a sharp distinction between the two modes of law. This article uses both jurisprudential and empirical lenses to analyse and contest critiques of international law’s status as a legal system. It focuses in particular on the emergent climate governance regime and the Paris Agreement as a potential gold standard for a consensus-driven international legal order. It argues that, far from being a poor imitation of a legal system, international law may actually represent the state of the art and act as an exemplar for municipal legal systems.","PeriodicalId":42994,"journal":{"name":"Cambridge International Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45701823","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}
Existing modes of liability in international law have been derived from the experiences of the Holocaust and the Nuremberg Trials. Since then, international criminal responsibility has developed in how it addresses and responds to international crimes, albeit primarily in the context of warfare characterised by well-organised hierarchical structures where leaders possess a defined scope of influence and ‘effective control’ over their subordinates. Charismatic leadership breaks down this strict understanding of organisations and ‘effective control’ and demonstrates the need for a broader understanding of international criminal liability. It introduces scenarios where despite the absence of a formal, hierarchical organisation or superior–subordinate relationship, the leader plays a determining role in crime commission and directly and effectively shapes their subordinates’ behaviours. This article examines whether such situations are captured by the existing framework for leaders’ liability under international criminal law, using Colombian ex-president Álvaro Uribe Vélez and the crimes committed during and after his presidency as a case study. In doing so, the article underlines the tensions and shortcomings of the current modes of liability when seeking accountability of charismatic leaders while stressing the need to reconceptualise and revisit classic modes of liability to answer to less formalised leadership styles.
{"title":"Charismatic leadership accountability under international criminal law","authors":"María Manuela Márquez Velásquez","doi":"10.4337/cilj.2023.01.03","DOIUrl":"https://doi.org/10.4337/cilj.2023.01.03","url":null,"abstract":"Existing modes of liability in international law have been derived from the experiences of the Holocaust and the Nuremberg Trials. Since then, international criminal responsibility has developed in how it addresses and responds to international crimes, albeit primarily in the context of warfare characterised by well-organised hierarchical structures where leaders possess a defined scope of influence and ‘effective control’ over their subordinates. Charismatic leadership breaks down this strict understanding of organisations and ‘effective control’ and demonstrates the need for a broader understanding of international criminal liability. It introduces scenarios where despite the absence of a formal, hierarchical organisation or superior–subordinate relationship, the leader plays a determining role in crime commission and directly and effectively shapes their subordinates’ behaviours. This article examines whether such situations are captured by the existing framework for leaders’ liability under international criminal law, using Colombian ex-president Álvaro Uribe Vélez and the crimes committed during and after his presidency as a case study. In doing so, the article underlines the tensions and shortcomings of the current modes of liability when seeking accountability of charismatic leaders while stressing the need to reconceptualise and revisit classic modes of liability to answer to less formalised leadership styles.","PeriodicalId":42994,"journal":{"name":"Cambridge International Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46975863","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}
This article challenges the common understanding according to which unilateral and extraterritorial sanctions are a threat to the international legal order. It shows that sanctions of this kind may have a role to play as responses to challenges to global security, particularly when the centralised action by the United Nations (UN) encounters limitations. The article considers two examples of extraterritorial sanctions that may be lawful in this sense: those expanding on the territorial scope of restrictive measures decided by the UN Security Council, and those mapping on certain measures recommended by the UN General Assembly. In these circumstances, countermeasures may provide the legal basis to support otherwise unlawful unilateral and even extraterritorial measures, provided that certain conditions are met. The article shows that such measures act as gap-fillers to ensure the widest possible compliance with communitarian norms and may ultimately strengthen the international rule of law.
{"title":"Extraterritorial sanctions in response to global security challenges: countermeasures as gap-fillers in the United Nations collective security system","authors":"Daniel Franchini","doi":"10.4337/cilj.2023.01.08","DOIUrl":"https://doi.org/10.4337/cilj.2023.01.08","url":null,"abstract":"This article challenges the common understanding according to which unilateral and extraterritorial sanctions are a threat to the international legal order. It shows that sanctions of this kind may have a role to play as responses to challenges to global security, particularly when the centralised action by the United Nations (UN) encounters limitations. The article considers two examples of extraterritorial sanctions that may be lawful in this sense: those expanding on the territorial scope of restrictive measures decided by the UN Security Council, and those mapping on certain measures recommended by the UN General Assembly. In these circumstances, countermeasures may provide the legal basis to support otherwise unlawful unilateral and even extraterritorial measures, provided that certain conditions are met. The article shows that such measures act as gap-fillers to ensure the widest possible compliance with communitarian norms and may ultimately strengthen the international rule of law.","PeriodicalId":42994,"journal":{"name":"Cambridge International Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41829769","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}
Phillip McCalman, L. Puzzello, Tania Voon, A. Walter
Screening of inward foreign investment in numerous countries worldwide has heightened in recent years for a range of reasons, one of which is the volume of Chinese outward investment. Moulding screening policies around concerns about Chinese investment has been a common pattern, particularly among developed countries and allies of the United States. The application of screening measures to Chinese investments in particular is also seen in recent practice in numerous countries. These developments create potential inconsistencies with international investment law, at least for those countries with an international investment agreement with China. The 2020 arbitral award in Global Telecom v Canada shows that even a provision that explicitly excludes investment screening decisions from a bilateral investment treaty may not apply to prevent all related investment treaty claims. The increased use of screening as a policy tool, with respect to China and otherwise, also raises questions about economic rationale and impact. Put simply, blocking a foreign investment proposal may have negative effects on shareholders, jobs and the economy itself, while even the existence of a restrictive screening regime and the threat of the imposition of conditions on a deal may dampen the appeal for foreign investors.
{"title":"Inward foreign investment screening targets China: interdisciplinary perspectives*","authors":"Phillip McCalman, L. Puzzello, Tania Voon, A. Walter","doi":"10.4337/cilj.2023.01.06","DOIUrl":"https://doi.org/10.4337/cilj.2023.01.06","url":null,"abstract":"Screening of inward foreign investment in numerous countries worldwide has heightened in recent years for a range of reasons, one of which is the volume of Chinese outward investment. Moulding screening policies around concerns about Chinese investment has been a common pattern, particularly among developed countries and allies of the United States. The application of screening measures to Chinese investments in particular is also seen in recent practice in numerous countries. These developments create potential inconsistencies with international investment law, at least for those countries with an international investment agreement with China. The 2020 arbitral award in Global Telecom v Canada shows that even a provision that explicitly excludes investment screening decisions from a bilateral investment treaty may not apply to prevent all related investment treaty claims. The increased use of screening as a policy tool, with respect to China and otherwise, also raises questions about economic rationale and impact. Put simply, blocking a foreign investment proposal may have negative effects on shareholders, jobs and the economy itself, while even the existence of a restrictive screening regime and the threat of the imposition of conditions on a deal may dampen the appeal for foreign investors.","PeriodicalId":42994,"journal":{"name":"Cambridge International Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42305816","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}
In this illuminating study on the everyday politics of South Africa’s communities on the fringes of society, Kerry Ryan Chance shows how the social relations of fire, water, land, and air intimately connect to power. These elements produce and regenerate energies that fuel the occurrences of different theories related to both natural and man-made events. In five chapters and a conclusion, the author analyzes how the impoverished residents of these communities collectively identify, employ strategies of resistance, define their material lives, and finally articulate how they conceive of democracy as a lived concept (18). Chance brings this story and its intersecting narratives together with a combination of observations (participant, hall, semi-furnished groups, interactions between officials and residents) and interviews. Each chapter opens with a dispatch that sets the stage for the portrayal of the inner lives and everyday struggles of the shack dwellers who fight for basic social services in South Africa’s densely populated, unelectrified, and waterstrapped shack settlements in the popular touristic cities of Cape Town and Durban. Chance shows the division between urbanmigrants and state agents, and their formal organization Abahlali. Abahlali serves as part of the poor people’s networks. It launches campaigns on behalf of foreign militants who engage in living politics to “[transmute] the boundaries between the home and the streets to make the poor seen and heard in the city through means that residents ground in their own communities and contrast to expert, elite, or technical languages of formal state institutions” (17). Readers are drawn into the plights of these urban dwellers and how their access to electricity and other social services turns into racialized politics that continue to divide and stratify the haves and the have nots. The distinction between social classes clearly emerged when the state installed prepaid electricity boxes in Durban’s Kennedy Road shacks for those who possessed jobs and could afford to pay (39). In spite of their lack of citizenship and their illicit connections to social services, the mute speak by using press releases,
在这项关于南非社会边缘社区日常政治的富有启发性的研究中，Kerry Ryan Chance展示了火、水、土地和空气的社会关系如何与权力密切相关。这些元素产生并再生能量，为与自然和人为事件有关的不同理论的出现提供燃料。在五章和一个结论中，作者分析了这些社区的贫困居民如何集体识别、使用抵抗策略、定义他们的物质生活，并最终阐明他们如何将民主视为一种生活概念（18）。Chance将这个故事及其交叉叙事与观察（参与者、大厅、半家具团体、官员和居民之间的互动）和采访相结合。每一章都以一篇文章开头，为描绘棚屋居民的内心生活和日常斗争奠定了基础，这些棚屋居民在南非人口稠密、未经教育、被水淹没的棚屋定居点（位于热门旅游城市开普敦和德班）为基本社会服务而战。《偶然》展示了城市移民和国家特工之间的分歧，以及他们的正式组织阿巴拉利。阿巴拉利是穷人网络的一部分。它代表参与生活政治的外国武装分子发起运动，“通过居民在自己的社区扎根的方式，与正式国家机构的专家、精英或技术语言形成对比，[改变]家庭和街道之间的界限，让穷人在城市中被看到和听到”（17）。读者被这些城市居民的困境所吸引，以及他们获得电力和其他社会服务的机会如何演变成种族化的政治，这种政治继续分化和分层富人和穷人。当国家在德班肯尼迪路的棚屋里为那些有工作、有能力支付的人安装预付费的电箱时，社会阶层之间的区别就明显显现了（39）。尽管他们没有公民身份，而且与社会服务有非法联系，但沉默者还是通过新闻稿说话，
{"title":"Book review","authors":"P. McAuliffe","doi":"10.4337/cilj.2023.01.09","DOIUrl":"https://doi.org/10.4337/cilj.2023.01.09","url":null,"abstract":"In this illuminating study on the everyday politics of South Africa’s communities on the fringes of society, Kerry Ryan Chance shows how the social relations of fire, water, land, and air intimately connect to power. These elements produce and regenerate energies that fuel the occurrences of different theories related to both natural and man-made events. In five chapters and a conclusion, the author analyzes how the impoverished residents of these communities collectively identify, employ strategies of resistance, define their material lives, and finally articulate how they conceive of democracy as a lived concept (18). Chance brings this story and its intersecting narratives together with a combination of observations (participant, hall, semi-furnished groups, interactions between officials and residents) and interviews. Each chapter opens with a dispatch that sets the stage for the portrayal of the inner lives and everyday struggles of the shack dwellers who fight for basic social services in South Africa’s densely populated, unelectrified, and waterstrapped shack settlements in the popular touristic cities of Cape Town and Durban. Chance shows the division between urbanmigrants and state agents, and their formal organization Abahlali. Abahlali serves as part of the poor people’s networks. It launches campaigns on behalf of foreign militants who engage in living politics to “[transmute] the boundaries between the home and the streets to make the poor seen and heard in the city through means that residents ground in their own communities and contrast to expert, elite, or technical languages of formal state institutions” (17). Readers are drawn into the plights of these urban dwellers and how their access to electricity and other social services turns into racialized politics that continue to divide and stratify the haves and the have nots. The distinction between social classes clearly emerged when the state installed prepaid electricity boxes in Durban’s Kennedy Road shacks for those who possessed jobs and could afford to pay (39). In spite of their lack of citizenship and their illicit connections to social services, the mute speak by using press releases,","PeriodicalId":42994,"journal":{"name":"Cambridge International Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49239565","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}
E. Baroncini, Federica Cristani, Anna Marhold, Jose Gustavo Prieto Muñoz, Peter-Tobias Stoll, Marina Trunk-Fedorova
{"title":"Introduction to the special section","authors":"E. Baroncini, Federica Cristani, Anna Marhold, Jose Gustavo Prieto Muñoz, Peter-Tobias Stoll, Marina Trunk-Fedorova","doi":"10.4337/cilj.2023.01.05","DOIUrl":"https://doi.org/10.4337/cilj.2023.01.05","url":null,"abstract":"","PeriodicalId":42994,"journal":{"name":"Cambridge International Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46575743","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}
The so-called ‘securitisation’ of international economic law is largely premised and enacted on grounds of defensive security exceptions, whereby governments invoke their national security interests to depart from their international economic obligations. This article aims to contribute to the ongoing debate on the compatibility of such security-driven unilateral measures with international law and within the current system of global governance, by exploring whether legal patterns tackling essential security interests under international economic law may reach beyond State-centred national security interests to also encompass concerns arising from global security threats (such as environmental security). In doing so, this article focuses on the relevant approaches taken by the European Union (EU), particularly in the operation of the EU Common Commercial Policy (CCP) under Article 207 of the Treaty on the Functioning of the European Union. The EU enjoys broad exclusive competence in framing and implementing its trade and investment policy under the CCP, both in terms of its internal regulation and external action. In this context, security considerations are bound to arise. This article explores a series of relevant legal instruments originating from or concluded by the EU, and analyses how these incorporate security considerations and the EU’s understanding of the concept of security thereunder. After considering security under EU primary law, the article reviews the position taken by the EU as a bilateral treaty player, by reference to the Trade and Comprehensive Agreement with the United Kingdom, and as a member of the World Trade Organization, notably on the interpretation of the General Agreement on Tariffs and Trade security exceptions clause. It also looks into EU internal action on foreign direct investment screening, export control and foreign subsidies regulations, as well as the EU’s proposed ‘anti-coercion mechanism’ and its ‘global human rights sanction regime’. The analysis of the EU’s multifaceted practice shows that while global security concerns may increasingly underlie obligations to cooperate and coordination clauses, existent security-related legal patterns in bilateral and multilateral treaty practice remain ‘national security’-centred; and despite the increasing ‘enlargement’ of the scope of national security to encompass additional non-military threats, the vast array of global security threats and vulnerabilities are hardly covered by this expansion.
{"title":"The securitisation of international economic law and ‘global security’: an analysis of the EU law approach through the prism of the Common Commercial Policy","authors":"L. Mola","doi":"10.4337/cilj.2023.01.07","DOIUrl":"https://doi.org/10.4337/cilj.2023.01.07","url":null,"abstract":"The so-called ‘securitisation’ of international economic law is largely premised and enacted on grounds of defensive security exceptions, whereby governments invoke their national security interests to depart from their international economic obligations. This article aims to contribute to the ongoing debate on the compatibility of such security-driven unilateral measures with international law and within the current system of global governance, by exploring whether legal patterns tackling essential security interests under international economic law may reach beyond State-centred national security interests to also encompass concerns arising from global security threats (such as environmental security). In doing so, this article focuses on the relevant approaches taken by the European Union (EU), particularly in the operation of the EU Common Commercial Policy (CCP) under Article 207 of the Treaty on the Functioning of the European Union. The EU enjoys broad exclusive competence in framing and implementing its trade and investment policy under the CCP, both in terms of its internal regulation and external action. In this context, security considerations are bound to arise. This article explores a series of relevant legal instruments originating from or concluded by the EU, and analyses how these incorporate security considerations and the EU’s understanding of the concept of security thereunder. After considering security under EU primary law, the article reviews the position taken by the EU as a bilateral treaty player, by reference to the Trade and Comprehensive Agreement with the United Kingdom, and as a member of the World Trade Organization, notably on the interpretation of the General Agreement on Tariffs and Trade security exceptions clause. It also looks into EU internal action on foreign direct investment screening, export control and foreign subsidies regulations, as well as the EU’s proposed ‘anti-coercion mechanism’ and its ‘global human rights sanction regime’. The analysis of the EU’s multifaceted practice shows that while global security concerns may increasingly underlie obligations to cooperate and coordination clauses, existent security-related legal patterns in bilateral and multilateral treaty practice remain ‘national security’-centred; and despite the increasing ‘enlargement’ of the scope of national security to encompass additional non-military threats, the vast array of global security threats and vulnerabilities are hardly covered by this expansion.","PeriodicalId":42994,"journal":{"name":"Cambridge International Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45606218","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 : 2023-03-02DOI: 10.1007/978-3-319-01580-4
G. Dakubo
{"title":"Cancer Biomarkers in Body Fluids","authors":"G. Dakubo","doi":"10.1007/978-3-319-01580-4","DOIUrl":"https://doi.org/10.1007/978-3-319-01580-4","url":null,"abstract":"","PeriodicalId":42994,"journal":{"name":"Cambridge International Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2023-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1007/978-3-319-01580-4","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47036607","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}
{"title":"Rethinking the scope of international law regulating information operations: lessons learned from a crime of online genocide in Myanmar*","authors":"","doi":"10.4337/cilj.2022.02.05","DOIUrl":"https://doi.org/10.4337/cilj.2022.02.05","url":null,"abstract":"","PeriodicalId":42994,"journal":{"name":"Cambridge International Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44409970","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}
{"title":"Marine renewable energy technologies on the high seas: challenges and opportunities to strengthen international environmental and renewable energy governance","authors":"","doi":"10.4337/cilj.2022.02.03","DOIUrl":"https://doi.org/10.4337/cilj.2022.02.03","url":null,"abstract":"","PeriodicalId":42994,"journal":{"name":"Cambridge International Law Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43417273","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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