Pub Date : 2022-10-01DOI: 10.1017/s0020589322000367
Michelle Foster, J. McAdam
Abstract The UN Human Rights Committee's finding in Teitiota v New Zealand has garnered widespread global attention for its recognition that the effects of climate change may put people's lives at risk or expose them to cruel, inhuman or degrading treatment, thus triggering States’ non-refoulement obligations. However, a secondary—and highly problematic—consequence of the decision has been its confusing and misplaced focus on ‘imminence’ of harm. This reflects a concerning, albeit uneven, trend in human rights cases generally (and cases concerning climate change and human rights, in particular) to recognize violations only where rights are immediately threatened. This short article reflects on the assumptions that Teitiota has triggered about the place of imminence in international protection claims, identifies the source of confusion, and suggests a more appropriate framework to guide a category of case that is likely to become the subject of intense litigation in the future.
{"title":"ANALYSIS OF ‘IMMINENCE’ IN INTERNATIONAL PROTECTION CLAIMS: TEITIOTA V NEW ZEALAND AND BEYOND","authors":"Michelle Foster, J. McAdam","doi":"10.1017/s0020589322000367","DOIUrl":"https://doi.org/10.1017/s0020589322000367","url":null,"abstract":"Abstract The UN Human Rights Committee's finding in Teitiota v New Zealand has garnered widespread global attention for its recognition that the effects of climate change may put people's lives at risk or expose them to cruel, inhuman or degrading treatment, thus triggering States’ non-refoulement obligations. However, a secondary—and highly problematic—consequence of the decision has been its confusing and misplaced focus on ‘imminence’ of harm. This reflects a concerning, albeit uneven, trend in human rights cases generally (and cases concerning climate change and human rights, in particular) to recognize violations only where rights are immediately threatened. This short article reflects on the assumptions that Teitiota has triggered about the place of imminence in international protection claims, identifies the source of confusion, and suggests a more appropriate framework to guide a category of case that is likely to become the subject of intense litigation in the future.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47844230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-01DOI: 10.1017/s0020589322000276
P. Giliker
{"title":"Property and Contract: Comparative Reflections on English Law and Spanish Law, edited by John Cartwright and Ángel M López y López [Hart Publishing, Oxford, 2021, 264pp, ISBN 9781509929337, £85 (h/bk)]","authors":"P. Giliker","doi":"10.1017/s0020589322000276","DOIUrl":"https://doi.org/10.1017/s0020589322000276","url":null,"abstract":"","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56790714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-01DOI: 10.1017/s0020589322000343
Christian Riffel
Abstract This article analyses what is widely known as the police powers exemption found in modern international investment agreements, with a focus on mega-regional trade and investment agreements. It explores its legal nature and requirements, the burden of proof and issues of compensation. In an attempt to curb (indirect) expropriation claims, the exemption carves out non-discriminatory regulatory measures from the scope of indirect expropriation and in such situations no compensation needs to be paid. It follows that, as a rule, foreign investors are not protected against the adverse economic effects of regulatory measures. The key question addressed is whether host States can increase the level of protection given to public welfare objectives through the use of this exemption without having to compensate investors for the measures taken. The article argues that, under the proportionality test embodied in the exemption, States can provide the level of protection that they desire without incurring a risk of liability as regards expropriation claims.
{"title":"INDIRECT EXPROPRIATION AND THE PROTECTION OF PUBLIC INTERESTS","authors":"Christian Riffel","doi":"10.1017/s0020589322000343","DOIUrl":"https://doi.org/10.1017/s0020589322000343","url":null,"abstract":"Abstract This article analyses what is widely known as the police powers exemption found in modern international investment agreements, with a focus on mega-regional trade and investment agreements. It explores its legal nature and requirements, the burden of proof and issues of compensation. In an attempt to curb (indirect) expropriation claims, the exemption carves out non-discriminatory regulatory measures from the scope of indirect expropriation and in such situations no compensation needs to be paid. It follows that, as a rule, foreign investors are not protected against the adverse economic effects of regulatory measures. The key question addressed is whether host States can increase the level of protection given to public welfare objectives through the use of this exemption without having to compensate investors for the measures taken. The article argues that, under the proportionality test embodied in the exemption, States can provide the level of protection that they desire without incurring a risk of liability as regards expropriation claims.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42040916","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-26DOI: 10.1017/s0020589322000306
H. Bosher
{"title":"Copyright in the Digital Single Market by Eleonora Rosati [Oxford University Press, Oxford, 2021, 491pp, ISBN: 978-0-19-885859-1, £145, h/bk and e/bk]","authors":"H. Bosher","doi":"10.1017/s0020589322000306","DOIUrl":"https://doi.org/10.1017/s0020589322000306","url":null,"abstract":"","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43864567","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-26DOI: 10.1017/S0020589322000318
Geleite Xu, Yifeng Shi
acquis where relevant. In doing so, Rosati provides a deeply thoughtful and thoroughly researched account of the Directive, both as a whole and of its specific contents. These sections are encyclopaedic in their coverage. The historical context and rationale provide a narrative that allows the text to be readable whilst also providing detail, concerning, for example, the form of analysis and definitions, and is thus of interest to both the scholar and practitioner. For example, in discussing the meaning of ‘best efforts’ in Article 17, Rosati states:
{"title":"New Bank Insolvency Law for China and Europe – Volume 3: Comparative Analysis by Matthias Haentjens, Shuai Guo and Bob Wessels [Eleven Publishing, The Netherlands, 2021, 206pp, ISBN: 978-94-6236-216-1, $59.99 (p/bk)]","authors":"Geleite Xu, Yifeng Shi","doi":"10.1017/S0020589322000318","DOIUrl":"https://doi.org/10.1017/S0020589322000318","url":null,"abstract":"acquis where relevant. In doing so, Rosati provides a deeply thoughtful and thoroughly researched account of the Directive, both as a whole and of its specific contents. These sections are encyclopaedic in their coverage. The historical context and rationale provide a narrative that allows the text to be readable whilst also providing detail, concerning, for example, the form of analysis and definitions, and is thus of interest to both the scholar and practitioner. For example, in discussing the meaning of ‘best efforts’ in Article 17, Rosati states:","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48265635","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-26DOI: 10.1017/S002058932200029X
Han-Wei Liu, Ching-Fu Lin
Abstract Pioneered by the US, recent mega-regional trade agreements such as the CPTPP have incorporated ‘regulatory coherence’ provisions—mirroring the US Administrative Procedural Act's core designs—to balance between domestic regulatory autonomy and international cooperation. Building upon existing literature that traces the trajectories of the diffusion of regulatory coherence across jurisdictions, this article analyses how Australia's constitutional tradition could effectively condition the development of regulatory coherence in a Westminster-based model of governance. It is argued that the global entrenchment of regulatory coherence is contingent upon the inherent boundary defined by the political dynamics and constitutional structures within a jurisdiction.
{"title":"CONSTITUTIONAL TRADITIONS AS BOUNDARIES IN STANDARDISING ADMINISTRATIVE RULEMAKING THROUGH TRADE AGREEMENTS","authors":"Han-Wei Liu, Ching-Fu Lin","doi":"10.1017/S002058932200029X","DOIUrl":"https://doi.org/10.1017/S002058932200029X","url":null,"abstract":"Abstract Pioneered by the US, recent mega-regional trade agreements such as the CPTPP have incorporated ‘regulatory coherence’ provisions—mirroring the US Administrative Procedural Act's core designs—to balance between domestic regulatory autonomy and international cooperation. Building upon existing literature that traces the trajectories of the diffusion of regulatory coherence across jurisdictions, this article analyses how Australia's constitutional tradition could effectively condition the development of regulatory coherence in a Westminster-based model of governance. It is argued that the global entrenchment of regulatory coherence is contingent upon the inherent boundary defined by the political dynamics and constitutional structures within a jurisdiction.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49600322","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-19DOI: 10.1017/S0020589322000288
Mariana Clara de Andrade
Abstract The two-step methodology for the identification of general principles of law deriving from domestic legal systems, consisting of a comparative analysis followed by a transposability test, seems accepted as the undisputed methodology in the current work of the International Law Commission on the topic. This article examines whether this two-step approach finds reflection in the practice of and before the PCIJ/ICJ and in international legal scholarship. The analysis finds that judicial practice does not entirely follow these two steps, but the method is widely upheld in doctrinal writing. The article argues that the decision to codify this two-step methodology can be viewed as progressive development by the Commission, and may signify the crystallization of this method of identification of general principles of law.
{"title":"THE TWO-STEP METHODOLOGY FOR THE IDENTIFICATION OF GENERAL PRINCIPLES OF LAW","authors":"Mariana Clara de Andrade","doi":"10.1017/S0020589322000288","DOIUrl":"https://doi.org/10.1017/S0020589322000288","url":null,"abstract":"Abstract The two-step methodology for the identification of general principles of law deriving from domestic legal systems, consisting of a comparative analysis followed by a transposability test, seems accepted as the undisputed methodology in the current work of the International Law Commission on the topic. This article examines whether this two-step approach finds reflection in the practice of and before the PCIJ/ICJ and in international legal scholarship. The analysis finds that judicial practice does not entirely follow these two steps, but the method is widely upheld in doctrinal writing. The article argues that the decision to codify this two-step methodology can be viewed as progressive development by the Commission, and may signify the crystallization of this method of identification of general principles of law.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47119077","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-12DOI: 10.1017/s002058932200032x
Frances Anggadi
Abstract States increasingly refer to ‘legal stability’ in connection with maritime zones, amidst concern to preserve their jurisdictional rights in the face of climate-change induced sea-level rise. Yet such a claim for preservation is at odds with the widely-expressed scholarly view that baselines, and their associated maritime zones, ‘ambulate’ with coastal changes. This article interrogates this tension by focussing on the understudied notion of legal stability as it relates to maritime zones, under the international law of the sea. The article examines the development of the term ‘legal stability’ in the discourse of States (what States say) and contends that a claim for the stability of maritime zones should be seen as an expression of the long-standing value placed on legal stability by States in the system of maritime zones. Further, the article presents the results of a global study of States’ implementation of the normal baseline in domestic legislation (what States do). The results show that many States have taken practical measures to secure legal stability for their normal baselines within their domestic frameworks, suggesting that existing international law may accommodate a greater degree of stability than widely appreciated. The article concludes by asserting that these findings matter not only for how we should receive States’ claims for maritime zone preservation on the basis of legal stability, but also prompts reconsideration of our overall understanding of the existing law on baselines and maritime zones.
{"title":"WHAT STATES SAY AND DO ABOUT LEGAL STABILITY AND MARITIME ZONES, AND WHY IT MATTERS","authors":"Frances Anggadi","doi":"10.1017/s002058932200032x","DOIUrl":"https://doi.org/10.1017/s002058932200032x","url":null,"abstract":"Abstract States increasingly refer to ‘legal stability’ in connection with maritime zones, amidst concern to preserve their jurisdictional rights in the face of climate-change induced sea-level rise. Yet such a claim for preservation is at odds with the widely-expressed scholarly view that baselines, and their associated maritime zones, ‘ambulate’ with coastal changes. This article interrogates this tension by focussing on the understudied notion of legal stability as it relates to maritime zones, under the international law of the sea. The article examines the development of the term ‘legal stability’ in the discourse of States (what States say) and contends that a claim for the stability of maritime zones should be seen as an expression of the long-standing value placed on legal stability by States in the system of maritime zones. Further, the article presents the results of a global study of States’ implementation of the normal baseline in domestic legislation (what States do). The results show that many States have taken practical measures to secure legal stability for their normal baselines within their domestic frameworks, suggesting that existing international law may accommodate a greater degree of stability than widely appreciated. The article concludes by asserting that these findings matter not only for how we should receive States’ claims for maritime zone preservation on the basis of legal stability, but also prompts reconsideration of our overall understanding of the existing law on baselines and maritime zones.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42340019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-01DOI: 10.1017/s0020589322000197
A. Trebilcock
first time. This volume is, therefore, a useful tool for a wide audience. In conclusion, there is no doubt that this book provides a valuable overview of the evolution of European surveillance law (and related case law) in the first two decades after the 9/11 attacks. One must hope that European supranational and domestic courts will continue to follow the trends highlighted in this book and that lawmakers will adopt legal frameworks which are in compliance with the judicial standards that this book identifies. This is more necessary than ever in a world where, due to ‘global’ emergencies, such as the COVID-19 pandemic, uncertainty and insecurity are fostering limitations on rights and freedoms which are progressively becoming ‘socially approved’, as the editors put it. Social acceptance, however, should not result in departures from the rule of law, which is where courts should continue to step in.
{"title":"The Law of Interactions Between International Organizations by Henner Gött [Springer, Berlin, 2020, 526pp, ISBN: 978-3-662-62388-6, £139.99 (h/bk), £111.50 (e/bk)]","authors":"A. Trebilcock","doi":"10.1017/s0020589322000197","DOIUrl":"https://doi.org/10.1017/s0020589322000197","url":null,"abstract":"first time. This volume is, therefore, a useful tool for a wide audience. In conclusion, there is no doubt that this book provides a valuable overview of the evolution of European surveillance law (and related case law) in the first two decades after the 9/11 attacks. One must hope that European supranational and domestic courts will continue to follow the trends highlighted in this book and that lawmakers will adopt legal frameworks which are in compliance with the judicial standards that this book identifies. This is more necessary than ever in a world where, due to ‘global’ emergencies, such as the COVID-19 pandemic, uncertainty and insecurity are fostering limitations on rights and freedoms which are progressively becoming ‘socially approved’, as the editors put it. Social acceptance, however, should not result in departures from the rule of law, which is where courts should continue to step in.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44384165","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-01DOI: 10.1017/S0020589322000215
Ardavan Arzandeh
Abstract FS Cairo (Nile Plaza) LLC v Brownlie (Brownlie II) is arguably the United Kingdom's highest appellate court's most significant decision this century on a private international law question. The judgment has ended nearly two decades of debate about the meaning of ‘damage’ sustained in England for the purpose of paragraph 3.1(9)(a) of Practice Direction 6B of the Civil Procedure Rules. In a four-to-one majority ruling, the Supreme Court decided that the provision was to be interpreted widely, such that, in a personal injury claim, any significant harm of any kind suffered by a claimant in England could provide a basis for the service of proceedings on a foreign-based defendant. The article is critical of the majority's decision, as it is liable to create both immediate and long-term problems in the context of the service-out jurisdiction in England. It also examines the court's pronouncements on the other question before it concerning proof of foreign law.
{"title":"BROWNLIE II AND THE SERVICE-OUT JURISDICTION UNDER ENGLISH LAW","authors":"Ardavan Arzandeh","doi":"10.1017/S0020589322000215","DOIUrl":"https://doi.org/10.1017/S0020589322000215","url":null,"abstract":"Abstract FS Cairo (Nile Plaza) LLC v Brownlie (Brownlie II) is arguably the United Kingdom's highest appellate court's most significant decision this century on a private international law question. The judgment has ended nearly two decades of debate about the meaning of ‘damage’ sustained in England for the purpose of paragraph 3.1(9)(a) of Practice Direction 6B of the Civil Procedure Rules. In a four-to-one majority ruling, the Supreme Court decided that the provision was to be interpreted widely, such that, in a personal injury claim, any significant harm of any kind suffered by a claimant in England could provide a basis for the service of proceedings on a foreign-based defendant. The article is critical of the majority's decision, as it is liable to create both immediate and long-term problems in the context of the service-out jurisdiction in England. It also examines the court's pronouncements on the other question before it concerning proof of foreign law.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49500617","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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