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THE ‘HIGHEST POSSIBLE AMBITION’ ON CLIMATE CHANGE MITIGATION AS A LEGAL STANDARD Int. Comp. Law Q. (IF 2.0) Pub Date : 2024-04-02 Benoit Mayer
The Parties to the Paris Agreement have committed to communicate successive ‘nationally determined contributions’ (NDCs) to the global response to climate change. Each NDC is expected to reflect the Party's ‘highest possible ambition’ (HPA) on the mitigation of climate change. This article envisages the possibility of taking HPA seriously: that is, of approaching it as an effective legal standard.
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ACCOUNTABILITY MECHANISMS OF MULTILATERAL DEVELOPMENT BANKS AND THE LAW OF INTERNATIONAL RESPONSIBILITY Int. Comp. Law Q. (IF 2.0) Pub Date : 2024-01-08 Johanna Aleria P. Lorenzo
Multilateral development banks (MDBs) are international organizations subject to the law of international responsibility. Yet, the relationship between their accountability mechanisms and the International Law Commission (ILC) Articles on the Responsibility of International Organizations (ARIO) remains unclear. Understanding this relationship is essential in fully realizing the right to remedy in the
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CHILD SOLDIERS AND PEACE AGREEMENTS Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-12-22 Sean Molloy
For societies transitioning from conflict to peace, the phenomenon of child soldiers poses significant challenges. These include quandaries associated with assisting in the reintegration of serving child soldiers, determining how to prevent future recruitment of child soldiers, and pursuing accountability of those who utilize child soldiers. In addition, questions are also raised as to whether and
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DEMOCRATIC STATE, AUTOCRATIC METHOD: THE REFORM OF HUMAN RIGHTS LAW IN THE UNITED KINGDOM Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-12-21 Merris Amos
On 22 June 2022 the Bill of Rights Bill to replace the Human Rights Act 1998 was introduced to the United Kingdom (UK) Parliament. Just over a year later, it was withdrawn. This was not a minor update, as claimed by the Conservative government, but a wholesale revision of a fundamental feature of UK constitutional arrangements. Given that the UK has no codified constitution, it is not out of the ordinary
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THE REBELLION OF CONSTITUTIONAL COURTS AND THE NORMATIVE CHARACTER OF EUROPEAN UNION LAW Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-12-18 Csongor Istvan Nagy
This article offers a reconstruction and assessment of the emerging rebellion of European constitutional courts against the exceptionless supremacy of European Union (EU) law. It presents the ontological theories of supremacy and how the Court of Justice of the EU (CJEU) overcame the first two major challenges of its history: the existential challenge of canonizing the general doctrine of supremacy
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THE TERRITORIAL REACH OF EUROPEAN UNION LAW: A PRIVATE INTERNATIONAL LAW ENQUIRY INTO THE EUROPEAN UNION'S SPATIAL IDENTITY Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-12-14 Toni Marzal
This article offers a reconstruction of how the Court of Justice of the European Union (EU) justifies the territorial scope of application of EU law. Scholarship on this issue tends to advocate for an expansive projection of EU norms in the pursuit of global values, subject to the external limits of public international law. This article will develop a critique of this approach by pointing to its underlying
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REGULATING TRANSNATIONAL DISSIDENT CYBER ESPIONAGE Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-12-12 Siena Anstis
Remote-access cyber espionage operations against activists, dissidents or human rights defenders abroad are increasingly a feature of digital transnational repression. This arises when State or State-related actors use digital technologies to silence or stifle dissent from human rights defenders, activists and dissidents abroad through the collection of confidential information that is then weaponized
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COMPARING ENVIRONMENTAL LAW SYSTEMS Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-12-11 Jorge E. Viñuales
This article revisits the overlooked field of comparative environmental law. It examines contributions to this field from the late 1960s to 2022, highlighting the methodologies proposed, their shortcomings, the main aspects and angles taken by the literature, and the curious lack of engagement by experts in comparative law proper with environmental law systems. On the basis of a structured examination
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CYBER OPERATIONS AND THE STATUS OF DUE DILIGENCE OBLIGATIONS IN INTERNATIONAL LAW Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-12-11 Jack Kenny
This article adopts a critical approach towards scholarship seeking to identify binding due diligence obligations for States in cyberspace. The article demonstrates that due diligence obligations are anchored in specific primary rules and are not a universal standalone source from which it is possible to derive binding obligations for all areas of activity. The consensus position of States in United
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‘THE TRANSIENT FOREIGNER’: RESTRICTIONS ON CITIZENSHIP ACQUISITION IN CHILE AND COLOMBIA FOR THOSE SAID TO BE ‘PASSING THROUGH’ Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-12-11 Juan Pablo Ramaciotti, Jo Shaw
This article explores the constitutional regulation of birthright ius soli citizenship in two Latin American countries which restrict access to citizenship for the children of foreigners deemed to be passing through the countries. Access to citizenship is a significant marker of membership, setting the boundaries of inclusion and exclusion within and across States. Choosing the cases of Chile and Colombia
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GENERAL PRINCIPLES OF LAW FORMED WITHIN THE INTERNATIONAL LEGAL SYSTEM Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-10-27 Eirik Bjorge
In the work of the International Law Commission (ILC) on ‘the general principles of law’ in Article 38(1)(c) of the Statute of the International Court of Justice, one question has given rise to an inordinate amount of controversy: does this category of principles include principles formed within the international legal system or does it embrace only principles derived from national legal systems? In
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THE RIGHT TO A HEALTHY ENVIRONMENT BEFORE THE INTER-AMERICAN COURT OF HUMAN RIGHTS Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-10-27 Lisa Mardikian
The article explores the interpretation of the right to a healthy environment by the Inter-American Court of Human Rights as an autonomous right under the American Convention on Human Rights. It places this development in the context of transformative constitutionalism in Latin America and examines it against the background of the Court's broader case law. The article argues that, even though this
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CHALLENGING THE USE OF EXTERNAL SOURCES BY THE INTER-AMERICAN COURT OF HUMAN RIGHTS Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-10-27 Tainá Garcia Maia
This article challenges the justification usually offered by the Inter-American Court of Human Rights for its broad use of external sources when engaging in evolutive interpretation of the American Convention on Human Rights (ACHR). It analyses the Court's jurisprudence concerning international humanitarian law, the rights of the child, and lesbian, gay, bisexual, transexual and intersex (LGBTI) rights
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MASS DEFORESTATION AS A CRIME AGAINST HUMANITY? Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-10-27 Pauline Martini, Joe Holt, Maud Sarliève
This article examines whether mass deforestation could be prosecuted as a crime against humanity under Article 7 of the Rome Statute. It does so in respect of the situation in the Brazilian Legal Amazon in 2019–2021, where the unbridled exploitation and destruction of the rainforest had a disastrous impact at local, regional and global levels. The article covers three main aspects. First, it explores
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AN EMERGENT PLANETARY HEALTH LAW Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-10-27 Eric C Ip
The health of the planet and its life forms are under threat from anthropogenic climate change, pollution and biodiversity loss, and the extreme weather events, heatwaves and wildfires that accompany them. The burgeoning field of planetary health studies the interplay between humanity and the Earth's biosphere and ecosystems on which human health depends. Scholarship on law from a planetary health
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‘EQUITY’ IN THE PANDEMIC TREATY: THE FALSE HOPE OF ‘ACCESS AND BENEFIT-SHARING’ Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-10-06 Abbie-Rose Hampton, Mark Eccleston-Turner, Michelle Rourke, Stephanie Switzer
During the COVID-19 pandemic the international community repeatedly called for the equitable distribution of vaccines and other medical countermeasures. However, there was a substantial gap between this rhetoric and State action. High-income countries secured significantly more doses than they required, leaving many low-income countries unable to vaccinate their populations. Current negotiations for
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COMMON ARTICLE 1 OF THE GENEVA CONVENTIONS AND THE METHOD OF TREATY INTERPRETATION Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-10-05 Lawrence Hill-Cawthorne
In its updated Commentaries on the 1949 Geneva Conventions, the International Committee of the Red Cross (ICRC) embraces the ‘external’ interpretation of Article 1 common to the four Geneva Conventions, according to which States have certain negative (complicity-type) and positive (prevention/response) obligations to ‘ensure respect’ for the Conventions by other actors. This interpretation has been
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THE STATUS OF GAZA AS OCCUPIED TERRITORY UNDER INTERNATIONAL LAW Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-10-05 Safaa Sadi Jaber, Ilias Bantekas
The traditional effective control test for determining the existence of a belligerent occupation requires boots on the ground. However, the evolution of the international law of occupation and the emergence of complex situations, particularly of a technological nature, necessitate a functional approach that protects the rights of occupied populations. The political, historical and geographical conditions
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THE INTERACTION OF TREATY AND CUSTOM IN THE CONCEPT OF OFFSHORE ARCHIPELAGOS Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-07-31 Catherine Redgwell, Antonios Tzanakopoulos
The law of the sea has long been a rich source of examples of the interplay, and occasional entanglement, of treaty and custom. This article discusses whether claims to close off the waters of ‘offshore archipelagos' by non-archipelagic States are consistent with international law against the background of this perennial issue. Analysis of the 1982 Law of the Sea Convention (LOSC) demonstrates quite
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INCLUSIVE SPACE LAW: THE CONCEPT OF BENEFIT SHARING IN THE OUTER SPACE TREATY Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-07-31 Rossana Deplano
This article examines the legal principles governing the sharing of benefits deriving from the exploration and use of outer space. It shows that, over time, three strands of State practice have developed different understandings of the content of the obligation contained in Article I, paragraph 1 of the Outer Space Treaty. While drawing parallels with other areas of international law, the article examines
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THE RIGHT TO BE FORGOTTEN IN DATA PROTECTION LAW AND TWO WESTERN CULTURES OF PRIVACY Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-07-31 Uta Kohl
Data protection law has emerged as an important bulwark against online privacy intrusions, and yet its status within privacy law remains awkward. Its starting point of protecting ‘personal’ rather than ‘private’ information puts it at odds with privacy more generally. Indeed, in its very design, data protection law caters for the protection of public personal information, or personal information which
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GROUP-BASED PROTECTION OF AFGHAN WOMEN AND GIRLS UNDER THE 1951 REFUGEE CONVENTION Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-07-31 Nikolas Feith Tan, Meltem Ineli-Ciger
The Taliban's takeover of Afghanistan in August 2021 deprived women and girls of their fundamental rights. The Taliban denied or severely restricted women and girls’ rights to education, work, healthcare, freedom of movement, opinion and expression, and to protection from gender-based violence. This article argues that the Taliban's treatment of Afghan women and girls amounts to persecution, and all
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THE INDEPENDENCE OF NATIONAL REGULATORY AUTHORITIES AND THE EUROPEAN UNION ENERGY TRANSITION Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-07-13 Laura Kaschny, Saskia Lavrijssen
National regulatory authorities (NRAs) play a key role in energy transition from fossil fuels to renewable energy sources. A recent judgment of the Court of Justice of the European Union has clarified the requirements of NRA independence under European Union (EU) energy law. The Court classified the exclusive competence of NRAs to fix network tariffs as purely technical assessments of factual realities
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SOLIDARITY IN EUROPEAN UNION LAW AND ITS APPLICATION IN THE ENERGY SECTOR Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-06-29 Kaisa Huhta, Leonie Reins
This article explores the meaning of solidarity in European Union (EU) law in the context of the energy sector and the ongoing energy crisis. Energy provides a powerful and topical sectoral example of the fundamental role and diverse functions of solidarity in EU law. In its OPAL ruling in 2021, the Court of Justice of the EU established that energy solidarity constitutes a legally binding principle
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THE ROLE OF COURTS IN PLASTIC POLLUTION GOVERNANCE Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-06-07 Samvel Varvastian
Plastic pollution is a planetary crisis posing a significant threat to humans and the environment. The regulatory response to this crisis has so far been piecemeal and has not prevented the accumulation and ubiquity of plastic pollution. The growing concern over plastic pollution and the first regulatory measures directed against it soon resulted in court cases. By early 2023, cases concerning plastic
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STATE IMMUNITY AND THIRD-PARTY LIMITS ON THE JURISDICTION OF DOMESTIC COURTS Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-06-07 Daniel Franchini
Recent case law has evidenced doctrinal ambiguity concerning whether State immunity precludes domestic courts’ jurisdiction when rights and interests of third-party States may be affected. This article posits that such confusion arises from a failure to recognize State immunity as a rule predicated on the sovereign status of the defendant. Through an analysis of State practice, the article contends
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NET ZERO EMISSIONS AND FREE TRADE AGREEMENTS: EFFORTS AT INTEGRATING CLIMATE GOALS BY THE UNITED KINGDOM AND AUSTRALIA Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-04-28 Margaret A Young, Georgina Clough
The negotiation of the free trade agreement (FTA) between Australia and the United Kingdom promised to integrate trade and climate policies. As a leader of the United Nations Framework Convention on Climate Change (UNFCCC) conference in Glasgow, the UK seemed well-placed to exert pressure on Australia, a country that was yet to embrace a target of net zero emissions by 2050. This article asks whether
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ALIGNING PARTICIPATION AND PROTECTION IN THE WOMEN, PEACE AND SECURITY AGENDA Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-04-28 Catherine Turner, Aisling Swaine
This article presents the first feminist doctrinal textual analysis of cross-pillar synergies within thematic resolutions of the United Nations Security Council. Specifically, it examines the pillars relating to ‘participation’ and ‘protection’ under the Women, Peace and Security (WPS) agenda. In attempts to balance agency with victimhood, normative advancement of both pillars has until recently evolved
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SENSE AND SEPARABILITY Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-04-28 Simon Camilleri
This article explores the doctrine of separability, as understood in particular in the English legal tradition. It does so by reference to the decisions in Sulamérica Cia Nacional de Seguros SA and others v Enesa Engelharia SA and others and ENKA İnşaat ve Sanayi A.Ş. v OOO ‘Insurance Company Chubb’ & Ors that explore the relevance of the concept when determining the law applicable to the arbitration
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OBJECTIVES OF PUBLIC PARTICIPATION IN INTERNATIONAL ENVIRONMENTAL DECISION-MAKING Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-03-10 Nicola Sharman
Public participation in international environmental decision-making can seek to fulfil different goals. This article explains how these goals can affect the design and appraisal of participatory processes and highlights the under-recognised value of law in determining the objectives of public participation in international environmental forums. A doctrinal analysis finds that substantive goals are
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LIBERTY AND ITS EXCEPTIONS Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-03-09 Lewis Graham
Article 5 of the European Convention on Human Rights enshrines the right to liberty, one of the oldest and most fundamental rights in the human rights tradition, and one of the core rights in the Convention. Central to the judicial understanding of Article 5 is the ‘exhaustive justification principle’: unlike with other rights, such as the right to privacy, interferences with liberty can only be justified
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NEUTRAL ARMS TRANSFERS AND THE RUSSIAN INVASION OF UKRAINE Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-03-07 Pearce Clancy
Since the beginning of the Russian invasion of Ukraine in February 2022, numerous Western States have supplied Ukraine with arms, munitions and war material, in ostensible breach of their obligations as neutral, non-participating States. States have failed to provide any legal explanation for such transfers, leaving the task to scholars and commentators to provide legal argumentation as to the compatibility
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ARBITRATION AGREEMENTS AND THE WINDING-UP PROCESS: RECONCILING COMPETING VALUES Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-03-06 Shaun Matos
Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges
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AN INTERNATIONAL LAW PRINCIPLE OF NON-REGRESSION FROM ENVIRONMENTAL PROTECTIONS Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-01-11 Andrew D Mitchell, James Munro
A principle that prohibits States from weakening their domestic levels of environmental protection continues to emerge at varying speeds within international trade, investment and environmental law. This article explores the principle's diverse history, rationale and legal expression in each of these domains and finds that its various articulations in different international treaties suffer the same
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THE COLONIALITY OF INTERNATIONAL INVESTMENT LAW IN THE COMMONWEALTH CARIBBEAN Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-01-11 Jason Haynes, Antonius Hippolyte
This article argues that although most Caribbean States have in the last 60 years ascended to statehood, colonialism continues to exist in new and variable forms. It relies upon the concept of ‘coloniality’ as advanced by Schneiderman to contend that the international investment law regime, whose history and evolution is rooted in colonialism, relentlessly pursues the economic interests of foreign
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CHARACTERISATION AND CHOICE OF LAW FOR KNOWING RECEIPT Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-01-11 Adeline Chong
Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common
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THE ILLEGALITY OF FISHING VESSELS ‘GOING DARK’ AND METHODS OF DETERRENCE Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-01-11 Priyal Bunwaree
Given recent data regarding fishing vessels switching off their Automatic Identification Systems (AIS) in the Western Indian Ocean, this article assesses the potential illegality of the practice by analysing national and international legislation. It shows that the enforcement of AIS laws is generally poor, and although these are becoming increasingly robust in some jurisdictions, the sanctions are
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A BIDIRECTIONAL ANGLO-GERMAN COMPARISON OF CONSIDERATION IN CONTRACT LAW Int. Comp. Law Q. (IF 2.0) Pub Date : 2023-01-11 Johannes Ungerer
This article explores the concept of consideration in contract law from a comparative perspective, looking at how English law and German law distinguish bargains from gifts. Contrary to the orthodoxy that consideration is unique to Common Law and absent from Civil Law, the bidirectional analysis in this article shows how English law and German law can be understood to fulfil a comparable function and
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NON-FORCIBLE MEASURES AND THE LAW OF SELF-DEFENCE Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-12-02 Russell Buchan
The right of self-defence is usually presented as an exception to the principle of non-use of force. Conventional wisdom therefore holds that the right of self-defence can only be relied on to justify those measures constituting a threat or use of force. This article rejects that claim. It argues that self-defence is a general right under international law and, as such, can be invoked to justify all
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THE RECOGNITION OF OCCUPATIONAL SAFETY AND HEALTH AS A FUNDAMENTAL PRINCIPLE AND RIGHT AT WORK Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-11-21 George Politakis
In June 2022, the International Labour Organization (ILO) decided to amend the 1998 Declaration on Fundamental Principles and Rights at Work in order to include the right to a safe and healthy working environment among the core labour rights to which member States are committed by virtue of their membership. The amendment marks the successful completion of three years of negotiations initiated in response
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PROMPTING CLIMATE CHANGE MITIGATION THROUGH LITIGATION Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-11-08 Benoit Mayer
Courts and scholars have interpreted open-ended legal norms as imposing due diligence obligations on States and other entities to mitigate climate change. These obligations can be applied in two alternative ways: through holistic decisions, where courts determine the level of mitigation action required of defendants; or through atomistic decisions, where courts identify some of the measures that the
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DEFICIENT BY DESIGN? THE TRANSNATIONAL ENFORCEMENT OF THE GDPR Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-10-20 Giulia Gentile, Orla Lynskey
Four years following the entry into force of the EU data protection framework (the GDPR) serious questions remain regarding its enforcement, particularly in transnational contexts. While this transnational under-enforcement is often attributed to the role of key national authorities in the GDPR's procedures, this article identifies more systemic flaws. It examines whether the GDPR procedures are deficient-by-design
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THE DEFINITION OF APARTHEID IN CUSTOMARY INTERNATIONAL LAW AND THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-10-20 Miles Jackson
Despite recent and increasing attention to the wrong of apartheid in international politics, some basic definitional questions remain uncertain. This article seeks to delineate the definition of apartheid in international law. Its focus is on the prohibition of apartheid binding States in custom and the obligation in Article 3 of the International Convention on the Elimination of All Forms of Racial
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A MULTILATERAL OPTION FOR VAT IN INTERNATIONAL TRADE? Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-10-20 Yan Xu
Value-added tax, the most common form of consumption tax in the world, operates on a destination principle to ensure it is levied only in the place of final consumption in cases of cross-border transactions. The international trade in services and intangibles through digital means poses two challenges: finding the place of consumption and collecting the tax when services supplied by businesses in one
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CLARIFYING HUMAN RIGHTS STANDARDS THROUGH ARTIFICIAL INTELLIGENCE INITIATIVES Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-10-20 Lottie Lane
Taking a law-and-governance approach, this article addresses legal certainty in international human rights law as it applies to artificial intelligence (AI). After introducing key issues concerning legal certainty, a comparative analysis of AI law-and-governance initiatives at the international, regional and national levels is undertaken. The article argues that many initiatives contribute to increased
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INDIRECT EXPROPRIATION AND THE PROTECTION OF PUBLIC INTERESTS Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-10-20 Christian Riffel
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
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ANALYSIS OF ‘IMMINENCE’ IN INTERNATIONAL PROTECTION CLAIMS: TEITIOTA V NEW ZEALAND AND BEYOND Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-10-20 Michelle Foster, Jane McAdam
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
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CONSTITUTIONAL TRADITIONS AS BOUNDARIES IN STANDARDISING ADMINISTRATIVE RULEMAKING THROUGH TRADE AGREEMENTS Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-09-26 Han-Wei Liu, Ching-Fu Lin
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
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THE TWO-STEP METHODOLOGY FOR THE IDENTIFICATION OF GENERAL PRINCIPLES OF LAW Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-09-19 Mariana de Andrade
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
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WHAT STATES SAY AND DO ABOUT LEGAL STABILITY AND MARITIME ZONES, AND WHY IT MATTERS Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-09-12 Frances Anggadi
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
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INTERNATIONAL LAW BEFORE UNITED KINGDOM COURTS: A QUIET REVOLUTION Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-07-25 Lord Lloyd-Jones
In the 36 years since Francis Mann published Foreign Affairs in English Courts, the engagement of the United Kingdom courts with issues of international law has greatly increased. This article addresses the reasons underlying this trend and identifies four key developments: first, the nature of international law has evolved to embrace individuals as subjects; second, the Human Rights Act 1998 has had
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SOVEREIGNTY FICTIONS IN THE UNITED KINGDOM'S TRADE AGENDA Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-07-25 Clair Gammage, Philip Syrpis
This article explores how sovereignty fictions have been used to advance different legal, political and economic aims in the articulation of the United Kingdom's future approach to global regulation. By mapping the transformative shifts in sovereignty paradigms, this article highlights the disconnect between the absolutist sovereignty popularised in the UK government's political rhetoric and the concept
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THE FINAL FRONTIER OF CYBERSPACE: THE SEABED BEYOND NATIONAL JURISDICTION AND THE PROTECTION OF SUBMARINE CABLES Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-07-25 Douglas Guilfoyle, Tamsin Phillipa Paige, Rob McLaughlin
Cyberspace is now acknowledged not only as the newest domain of warfare, but also as a space vital to economic, educational and cultural development for all States. This thin consensus ignores the fundamental fact that the backbone of cyber infrastructure—submarine telecommunication cables—is not (for the large part) located within sovereign territorial jurisdiction. The radically increased reliance
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REVISITING THE LEGALITY OF TRAVEL RESTRICTIONS UNDER INTERNATIONAL LAW DURING COVID-19 Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-07-25 Lisa Forman, Roojin Habibi
Under the International Health Regulations (IHR), States must consider decision-making criteria in applying travel restrictions during a public health emergency of international concern. Interpretation on the legal parameters of such restrictions varies widely. This article considers whether and how the permissibility of travel restrictions under the IHR may have changed given recent developments,
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BROWNLIE II AND THE SERVICE-OUT JURISDICTION UNDER ENGLISH LAW Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-06-27 Ardavan Arzandeh
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
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DETERMINING THE APPROPRIATE FORUM BY THE APPLICABLE LAW Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-06-22 Richard Garnett
The concepts of jurisdiction and applicable law have been traditionally regarded as separate inquiries in private international law: a court only considers the applicable law once it has decided to adjudicate a matter. While such an approach still generally applies in civil law jurisdictions, in common law countries the concepts are increasingly intertwined. This article examines the relationship between
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AN INTERNATIONAL CONVENTION ON EXPERT DETERMINATION AND DISPUTE BOARDS? Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-06-14 Djakhongir Saidov
This article makes a case for an international convention on expert determination (ED) and Dispute Boards (DBs) that would require its Contracting States to recognise agreements on ED/DBs and enforce ED/DB decisions. Whilst strong, the case for the convention may not be compelling as there are arguments against it. But at least the time has come for the international legal community to start thinking
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A CONTEXTUAL ANALYSIS OF ARTICLE 16 OF THE IRELAND–NORTHERN IRELAND PROTOCOL Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-05-27 Billy Melo Araujo
Article 16 of the Ireland–Northern Ireland Protocol annexed to the EU–UK Withdrawal Agreement is an escape clause which allows the parties to deviate from their obligations under certain conditions. This article maps out the main features of the safeguards provision in the Protocol in light of international trade law and international relations literature on treaty design. It provides a detailed examination
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THE ROLE OF THE GENERAL ASSEMBLY IN DETERMINING THE LEGITIMACY OF GOVERNMENTS Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-05-19 Rebecca Barber
In 2021, unconstitutional transfers of power in Myanmar and Afghanistan highlighted that while States may desire a coherent response to questions about the status of governments, and may look for international guidance in such regard, there is no established process for providing such guidance. Thus, attention focuses on the General Assembly's credentials process, designed to assess the eligibility
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THE BIRTH AND LIFE OF THE DEFINITION OF MILITARY OBJECTIVES Int. Comp. Law Q. (IF 2.0) Pub Date : 2022-05-02 Eyal Benvenisti
The forgotten story of the birth and life of the definition of ‘military objectives’ is relevant to the ongoing discussion about the need to adapt the law to asymmetric warfare. This definition, authored by a West German law professor and former member of the Nazi party, was driven by a Western effort to privilege regular armies while curbing the actions of guerrilla fighters and exposing their civilian