The Faculty has published Volume 9 Number 7 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.
This issue includes the following articles:
Matthew H. Kramer: The Demandingness of Deontological Duties (26/2018)
Consequentialist doctrines have often been criticized for their excessive demandingness, in that they require the thorough instrumentalization of each person’s life as a vehicle for the production of good consequences. In turn, the proponents of such doctrines have often objected to what they perceive as the irrationality of the demandingness of deontological duties. In this paper, I shall address objections of the latter kind in an effort to show that they are unfounded. My investigation of this matter will unfold by reference to a scenario that strikingly and concretely exemplifies the demandingness of deontological duties. That scenario, which involves a situation of torture (specifically, placatory torture – in other words, torture undertaken for the purpose of appeasing people who have demanded that it be administered), will serve as a springboard for my endeavor to vindicate the rationality of deontological absolutes and will help to illuminate the endeavor’s practical implications.
Michael Waibel: The Origins of Interpretive Canons in Domestic Legal Systems (27/2018)
This chapter examines the domestic origins of the canons of construction used in treaty interpretation. It shows that these canons typically draw on domestic principles for statutory and contractual interpretation. Section I surveys general themes emerging from specific canons of construction, and provides a summary of some key links between the canons of construction and foundational sources such as the Roman Law Digest and the work of early international lawyers, such as Grotius, Pufendorf, and de Vattel.
Section II then zooms into some specific canons and their domestic origins. It examines the links that each canon has to the common and civil law traditions (and other sources), and the extent to which international tribunals have acknowledged the domestic origins of these canons. Just like national courts unconsciously rely on contract and statutory analogies in interpreting treaties, this section shows that international courts and tribunals often rely on these canons without awareness of their domestic origins, and even though they are not found explicitly in the Vienna Convention on the Law of Treaties.
Michael Waibel: Pitting the MFN Genie Back in the Bottle (28/2018)
This essay underscores the importance of background understandings in general international law for interpreting brief, open-ended clauses such as MFN clauses. Contrary to Batifort and Heath’s claim, I suggest that often interpreters of MFN clauses cannot limit themselves to the text, context, and preparatory materials of a specific MFN clause. A common international negotiating technique, including for investment treaties, is to rely on the general background understanding of what a clause typically means in international law—its default meaning. I also argue that MFN clauses have played a surprisingly limited role in the international investment regime to date. In the main, they have functioned as a stepping stone for procedural and substantive guarantees found in third-party investment treaties. This use, and the limited role of MFN clauses in investment treaty awards, stands in sharp contrast to MFN clauses in the trade regime.
Thomas Cromwell & Bruno Gelinas-Faucher: William Schabas, the Canadian Charter of Rights and Freedoms, and International Human Rights Law (29/2018)
The chapter engages with Professor Schabas’ contribution on the use of international human rights law by Canadian Courts. It aims more specifically to describe and evaluate the Supreme Court of Canada’s use of international sources in interpreting the Canadian Charter of Rights and Freedoms.
Following a detailed introduction, the second part of the chapter discusses the various ways in which the Supreme Court has engaged with international human rights law in its Charter jurisprudence. The third part outlines a number of outstanding challenges, both theoretical and practical, that characterize this complex relationship.
Richard Clements: Managerialism: The Before, During, and After of Fragmentation in International Law (30/2018)
Scholars have largely refrained from categorising fragmentation into (pre-, peri-, and post-) stages. However, by tracking scholarly debate on the causes, conditions, and effects of fragmentation since the 1990s, a common linkage becomes apparent. This is managerial ideology. Managerialism has received scholarly attention but with an expanded definition of managerialism – as a microcosm of managerialism in modern society – additional features are revealed, which are identifiable in the fragmentation of international law. The paper, therefore, begins by conceptualising managerialism, looking to management to provide this broader definition. Hereafter, the paper traces the importance of the managerial mindset to the fragmentation of international law. It looks to the causes of fragmentation, arguing that managerialism conditioned the turn to functional regimes. It then considers the managerial premises underpinning functional regimes, namely the idea of professional specialisation and the portrayal of regimes operating as markets. Finally, it considers one pathology of functional regimes – the democracy deficit – and how the solution posed to this, namely greater accountability and oversight, is a managerial one. The paper concludes on the importance of managerialism for the development of international law over recent decades.
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