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International & Comparative Law Quarterly
Journal Prestige (SJR): 0.369
Citation Impact (citeScore): 1
Number of Followers: 236  
 
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ISSN (Print) 0020-5893 - ISSN (Online) 1471-6895
Published by Cambridge University Press Homepage  [374 journals]
  • ILQ volume 68 issue 3 Cover and Front matter
    • PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000289
      Issue No: Vol. 68, No. 3 (2019)
       
  • ILQ volume 68 issue 3 Cover and Back matter
    • PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000290
      Issue No: Vol. 68, No. 3 (2019)
       
  • THE ASSAULT ON INTERNATIONAL ADJUDICATION AND THE LIMITS OF WITHDRAWAL
    • Authors: Campbell McLachlan
      Pages: 499 - 537
      Abstract: Withdrawal from international adjudication is a contemporary phenomenon with wide implications. The act of treaty withdrawal is not to be seen as merely the unilateral executive exercise of the individual sovereign prerogative of a State. International law places checks upon the exercise of withdrawal, recognising that it is an act that of its nature affects the interests of other States parties, which have a collective interest in constraining withdrawal. National courts have a complementary function in restraining unilateral withdrawal in order to support the domestic constitution. The arguments advanced against international adjudication in the name of popular democracy at the national level can serve as a cloak for the exercise of executive power unrestrained by law. The submission by States to peaceful settlement of disputes through international adjudication is central, not incidental, to the successful operation of the international legal system.
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000162
      Issue No: Vol. 68, No. 3 (2019)
       
  • STATE RESPONSIBILITY FOR MODERN SLAVERY: UNCOVERING AND BRIDGING THE GAP
    • Authors: Philippa Webb; Rosana Garciandia
      Pages: 539 - 571
      Abstract: International law prohibits slavery and slavery-like practices under treaties that have been in force for more than a century. Yet, contemporary forms of slavery are one of the prevailing challenges for the international community, with 40.3 million people in modern slavery on any given day in 2016. The State has been largely overlooked as a perpetrator or accomplice in the global movement to eradicate modern slavery. The hand of the State can however be found in contemporary cases of modern slavery. This article identifies five scenarios of State involvement in modern slavery and aims to uncover and bridge the responsibility gap.
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000277
      Issue No: Vol. 68, No. 3 (2019)
       
  • VULNERABILITY AND THE INTERNATIONAL LAW COMMISSION'S DRAFT ARTICLES ON THE
           PROTECTION OF PERSONS IN THE EVENT OF DISASTERS
    • Authors: Thérèse O'Donnell
      Pages: 573 - 610
      Abstract: This article ponders the possibilities existing for legal re-understandings of vulnerability and adopts the International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters (2016) as its principal discursive context. Despite some promise and potential, the draft Articles retreated to conservative understandings of disaster-vulnerability and missed an opportunity for a sophisticated formulation. This article argues for disaster law's engagement with contemporary social science research. The work of critical geographers, historians and anthropologists in political ecology is particularly apposite. By rejecting geophysical outlooks in favour of structuralist understandings of disaster-vulnerability, such research facilitates consideration of interrelated histories and the role of economics in producing disaster-vulnerability. This article argues that such perspectives allow for reconsideration of current legal understandings regarding disaster-vulnerability (particularly in relation to international cooperation and risk and reduction) and thereby offer some promise for enriching disaster law's comprehensiveness and relevance.
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000228
      Issue No: Vol. 68, No. 3 (2019)
       
  • BLANKET BANS, SUBSIDIARITY, AND THE PROCEDURAL TURN OF THE EUROPEAN COURT
           OF HUMAN RIGHTS
    • Authors: Peter Cumper; Tom Lewis
      Pages: 611 - 638
      Abstract: In recent years several commentators have identified a ‘procedural turn’ by the European Court of Human Rights whereby it places increased emphasis on the presence or absence and/or quality of legislative and judicial deliberations at domestic level when assessing the proportionality of allegedly rights-infringing measures. One area where the procedural turn has been particularly apparent is in relation to cases involving blanket bans on activities protected by the European Convention. On most accounts this move to ‘process-based review’ is causally linked to the principle of subsidiarity. In this article it is argued that whilst the shift to process-based review may generally have sound justifications in terms of the subsidiary role of the European Court as compared to States parties to the Convention, there are nevertheless several ironic downsides to this approach in the case of blanket bans, in terms of the certainty and predictability of the Court's case law. Furthermore, and more critically, there may be serious consequences in terms of the rights protection afforded to vulnerable minorities within States who may be at the receiving end of such legislative blanket bans.
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000186
      Issue No: Vol. 68, No. 3 (2019)
       
  • JURISDICTION AND FREEZING INJUNCTIONS: A REASSESSMENT
    • Authors: Filip Saranovic
      Pages: 639 - 664
      Abstract: The existing international scope of English freezing injunctions in support of foreign proceedings is excessively claimant-friendly and inconsistent with the need for a level playing field in litigation. The English courts must reconsider the current boundaries of relief by taking into account an international systemic perspective of the purpose of private international law rules. This requires a multilateral and horizontal approach to the existence of jurisdiction rather than the unilateral and vertical approach that exists under the rules of jurisdiction of English national law. The traditional justifications for the availability of collateral freezing injunctions with respect to assets located abroad rest on a series of fundamental theoretical flaws. This article proposes a range of reforms with the aim of strengthening the equality of the parties and eliminating encroachment on the sovereignty of foreign States.
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000265
      Issue No: Vol. 68, No. 3 (2019)
       
  • TAKING THE MEASURE OF CHANGING LABOUR MOBILIZATION AT THE INTERNATIONAL
           LABOUR ORGANISATION IN THE WAKE OF THE EU SOVEREIGN DEBT CRISIS
    • Authors: Claire Kilpatrick
      Pages: 665 - 697
      Abstract: This analysis investigates changing mobilization at the ILO in response to the labour and social rights shock created by EU and IMF demands in the EU sovereign debt crisis (Crisis Europe or euro-crisis). Mobilization means the purposeful use of legal norms and institutions by social movements and civil society groups to advance identified policy goals. It can be contrasted with the use of legal norms and institutions by individuals or entities to settle disputes affecting them. After introducing relevant features of euro-crisis and the ILO, the article develops an analysis that measures changing mobilization at the ILO during euro-crisis. It then shows how such an analysis makes two key contributions: first, to our understanding of the ILO and, second, to how we approach mobilization. First, by viewing the ILO as a rights mobilization structure, it shows the vitality and interest of doubted or neglected ILO supervision and complaints mechanisms. Five elements are underlined: the ILO is more than existing literature assumes; it questions the depiction of the ILO as a ‘toothless tiger’; the sharp divide between unions and NGOs is overstated; certain institutional design features make the ILO a good venue for transnational mobilization; the ILO is not transparent in terms of access to documents relevant to mobilization and compares poorly in this respect with UN Human Rights Treaty Bodies. Second, by setting it against existing literature, it is shown how measuring mobilization is distinctive within the broader human rights mobilization scholarship. The most important insights it introduces are: rejecting the assumption that mobilization inevitably follows a significant rights shock such as euro-crisis; addressing the puzzles of union ‘mobilization’ and motivation; operationalizing measurement of mobilization against the backdrop of venue choices; considering how to deal with an international organization which is both a mobilization venue and an engaged actor.
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000113
      Issue No: Vol. 68, No. 3 (2019)
       
  • THE LEGAL CHARACTER OF ARTICLE 18 OF THE VIENNA CONVENTION ON THE LAW OF
           TREATIES
    • Authors: Paul Gragl; Malgosia Fitzmaurice
      Pages: 699 - 717
      Abstract: The main reason for Article 18 being one of the most opaque provisions of the Vienna Convention is that it establishes a relatively vague ‘interim obligation’ for States to refrain from acts which would defeat the object and purpose of a treaty between its signature and ratification. Although the existence of such an interim obligation has been recognized by States and in various international legal regimes, it remains problematic since Article 18 neither defines nor determines its own contours and when and under which conditions it is being breached. It goes without saying that the legal consequences of a possible breach of this provision are left equally unclear. It remains uncertain how the interim obligation of Article 18 fits into the general international law of treaties; what its legal nature and temporal scope is; which role the principle of good faith plays as a possibly underlying principle of this provision; and how we should understand the object and purpose of a treaty and how it can be defeated. Furthermore, its apparent focus seems to be on bilateral rather than multilateral treaties, but this exclusive application of this interim obligation to bilateral treaties would contravene both the expressed and implied intent of the drafters. Therefore, this article also discusses how Article 18 fits within the normative system of international law and law-making treaties, such as human rights treaties.
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000253
      Issue No: Vol. 68, No. 3 (2019)
       
  • DISTORTED TERMINOLOGY: THE UK'S CLOSURE OF INVESTIGATIONS INTO ALLEGED
           TORTURE AND INHUMAN TREATMENT IN IRAQ
    • Authors: Elizabeth Stubbins Bates
      Pages: 719 - 739
      Abstract: The UK Ministry of Defence (MOD) has closed hundreds of investigations into alleged ill-treatment of detainees by British troops in Iraq. This article probes one reason given for the closure of these investigations: the assertion (without further evidence) that the allegations were ‘less serious’, ‘lower-level’ or in the ‘middle’ range of severity. These terms usually appear without reference to international law, and are once defined with reference to the English criminal law of assault, so that investigations were closed if the alleged treatment resulted in less than grievous bodily harm. The MOD's terminology is wrong-headed and conceptually underinclusive: it fails to grasp the threshold of inhuman or degrading treatment in international human rights law (IHRL), and largely neglects the investigatory obligations in IHRL, international humanitarian law (IHL) and international criminal law (ICL).
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S002058931900023X
      Issue No: Vol. 68, No. 3 (2019)
       
  • THE HUMAN RIGHTS DEFENCE IN INTERNATIONAL INVESTMENT ARBITRATION:
           EXPLORING THE LIMITS OF SYSTEMIC INTEGRATION
    • Authors: Johannes Hendrik Fahner; Matthew Happold
      Pages: 741 - 759
      Abstract: In a variety of investment arbitration cases, respondent States have argued that measures impugned by investors were mandated by that State's human rights obligations. Tribunals have generally been reluctant to engage with such arguments and to interpret the relationship between investment law and human rights in a straightforward manner. This article discusses two other possibilities: harmonious interpretation and prioritization. Harmonious interpretation seeks to read provisions from investment treaties and human rights treaties together, whereas prioritization gives normative superiority to one provision over another. We conclude that harmonious interpretation is facilitated by the discretionary character of common treaty standards in both human rights and investment law, but that the final result is unlikely to be very different from prioritization, because even harmonious interpretation requires that one provision is read in the light of, and thereby subjugated to, the other.
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000241
      Issue No: Vol. 68, No. 3 (2019)
       
  • HUMAN RIGHTS IN INTERNATIONAL INVESTMENT LAW: THE 2016 MOROCCO–NIGERIA
           BILATERAL INVESTMENT TREATY
    • Authors: Niccolò Zugliani
      Pages: 761 - 770
      Abstract: The 2016 Morocco–Nigeria bilateral investment treaty (BIT) stands out from other such treaties because of its innovative human rights approach to the protection and promotion of foreign direct investment. Human rights permeate its approach to the regulation of investment in a manner which is most unusual in international investment agreements (IIAs). As a result, this is the most socially-responsible BIT currently concluded. Although it remains exceptional within the investment-treaty framework, the treaty reflects African initiatives to ensure that the next generation of BITs encourages more responsible investments. As such, it shows that human rights-compliant investment treaties can find fertile ground in developing African countries and it sets an example for current and future negotiations aimed at fostering respect for human rights in investment activities.
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000174
      Issue No: Vol. 68, No. 3 (2019)
       
  • United+Nations+Convention+on+the+Law+of+the+Sea:+A+Commentary,+edited+by+Alexander+Proelss+[C.H.+Beck/Hart/Nomos,+Munich,+Oxford+and+Baden-Baden,+2017,+1800pp,+ISBN+9781849461924,+£495.00+(h/bk)]&rft.title=International+&+Comparative+Law+Quarterly&rft.issn=0020-5893&rft.date=2019&rft.volume=68&rft.spage=771&rft.epage=772&rft.aulast=Boyle&rft.aufirst=Alan&rft.au=Alan+Boyle&rft_id=info:doi/10.1017/S0020589319000198">United Nations Convention on the Law of the Sea: A Commentary, edited by
           Alexander Proelss [C.H. Beck/Hart/Nomos, Munich, Oxford and Baden-Baden,
           2017, 1800pp, ISBN 9781849461924, £495.00 (h/bk)]
    • Authors: Alan Boyle
      Pages: 771 - 772
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000198
      Issue No: Vol. 68, No. 3 (2019)
       
  • Permanent+States+of+Emergency+and+the+Rule+of+Law:+Constitutions+in+an+Age+of+Crisis+by+Alan+Greene+[Hart+Studies+in+Security+and+Justice,+Hart+Publishing,+Oxford,+2018,+256pp,+ISBN+9781509906154,+£65.00+(h/bk)]&rft.title=International+&+Comparative+Law+Quarterly&rft.issn=0020-5893&rft.date=2019&rft.volume=68&rft.spage=772&rft.epage=773&rft.aulast=Gearty&rft.aufirst=Conor&rft.au=Conor+Gearty&rft_id=info:doi/10.1017/S0020589319000204">Permanent States of Emergency and the Rule of Law: Constitutions in an Age
           of Crisis by Alan Greene [Hart Studies in Security and Justice, Hart
           Publishing, Oxford, 2018, 256pp, ISBN 9781509906154, £65.00 (h/bk)]
    • Authors: Conor Gearty
      Pages: 772 - 773
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000204
      Issue No: Vol. 68, No. 3 (2019)
       
  • Military+Trials+of+War+Criminals+in+the+Netherlands+East+Indies+1946–1949+by+Fred+L+Borch+[Oxford+University+Press,+New+York,+NY,+2017,+255pp,+ISBN+9780198777168,+US$94+(h/bk)]&rft.title=International+&+Comparative+Law+Quarterly&rft.issn=0020-5893&rft.date=2019&rft.volume=68&rft.spage=774&rft.epage=775&rft.aulast=Linton&rft.aufirst=Suzannah&rft.au=Suzannah+Linton&rft_id=info:doi/10.1017/S0020589319000216">Military Trials of War Criminals in the Netherlands East Indies
           1946–1949 by Fred L Borch [Oxford University Press, New York, NY, 2017,
           255pp, ISBN 9780198777168, US$94 (h/bk)]
    • Authors: Suzannah Linton
      Pages: 774 - 775
      PubDate: 2019-07-01T00:00:00.000Z
      DOI: 10.1017/S0020589319000216
      Issue No: Vol. 68, No. 3 (2019)
       
 
 
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