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Thursday, 21 August 2014

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 5 Number 9 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Veronika Fikfak: Domestic Courts' Enforcement of Decisions and Opinions of the International Court of Justice (32/2014)

The chapter investigates the role of domestic courts in the implementation of decisions of the ICJ in the domestic legal order. Scholars have argued that in the absence of a general enforcement mechanism on the international plane, domestic courts have to act as agents of the international legal order applying and enforcing decisions rendered by international institutions. Yet recently, many domestic courts have refused to blindly enforce such decisions. The chapter examines how domestic courts have reacted to the decisions and opinions of the ICJ. Looking at the VCCR cases, the Israeli Wall Opinion and the Jurisdictional Immunities judgment, I show how domestic courts have sought to maintain a balance between asserting their autonomy in adjudicating cases whilst expressing respect and recognition of the special position the International Court of Justice enjoys in the international legal order. The analysis reveals that domestic courts are careful to frame their review in domestic legal terms, utilizing various distancing devices to avoid a direct challenge of the ICJ’s reading and interpretation of international law.

Stelios Tofaris and Sandy Steel: Police Liability in Negligence for Failure to Prevent Crime: Time to Rethink (39/2014)

The article advances two propositions. The first is that the current law on the negligence liability of the police for failure to prevent a crime is unsatisfactory. The general rule of non-liability is based on two lines of argument, neither of which is persuasive. The Hill policy grounds used by the courts do not stand up to close scrutiny, whist the application of the pure omission rule to the police is also problematic. At the same time, the current law does not attach adequate significance to arguments in favour of liability. The second proposition is that the existing framework of negligence liability of public authorities can be re-adjusted to generate outcomes that better balance the valid considerations for and against liability in cases of police failure to prevent crime.

Lorand Bartels: The Chapeau of Article XX GATT: A New Interpretation (40/2014)

This article presents a new interpretation of the Chapeau of Article XX of the GATT. The basis for this interpretation is a structural analysis of Article XX according to which this provision establishes a right to adopt measures for specific purposes that is subject to specific conditions set out in the subparagraphs of Article XX and horizontal conditions set out in the Chapeau. The article argues that the conditions in the subparagraphs are focused on the trade restrictive effects of these measures. The horizontal conditions in the Chapeau, on the other hand, are focused on two different aspects of these measures. One condition is focused on the discriminatory effects of these measures, which can be justified, and which in practice result from the non-application of the restrictive effects of these measures (these restrictive effects being justified under the subparagraphs) to competitive products from other origins. The second condition is focused on any protectionist purpose of these measures that is 'disguised' by a legitimate purpose, and this cannot be justified. The article goes on to interpret these conditions, based on a fundamentally economic conception of the discrimination conditions, and concludes by drawing some analogies between Article XX and Articles 2.1 and 2.2 of the TBT Agreement.

Matthew H Kramer: The Concept of Law and Political Philosophy (41/2014)

H.L.A. Hartʼs "The Concept of Law" is, of course, primarily a work of legal philosophy. It is indeed the most influential work of legal philosophy in the English language (and perhaps in any language) published during the twentieth century. However, the immense importance of the book for philosophers of law should not prevent readers from discerning its importance for political and moral philosophers as well. Hartʼs insights into the nature of law and sovereignty are themselves of great significance for political philosophy, and the second half of "The Concept of Law" contains ruminations on justice and on the relationships between law and morality that deserve attention from anyone who aspires to think clearly about the problems of political philosophy.

In a short compass, this paper -- written for the "Oxford Handbook of Classics in Political Theory" -- seeks to underscore the import of Hartʼs classic text for theorists who grapple with those problems.

Catherine Barnard: EU Employment Law and the European Social Model: The Past, the Present and the Future (43/2014)

If the critics are right, the EU social model is dead and that’s the end of it. Those on the right may well be dancing on its grave; those more sympathetic might mourn its passing. My view is more sanguine. I shall argue that the European social model is certainly facing unprecedented challenges. However, I will suggest that these challenges, caused in part by the EU’s response to the crisis but more generally resulting from a growing hostility towards the European Union project as a whole, are not terminal and that there is – and should be - a continued role for the European social model and its employment dimension in particular.

The article therefore considers what is meant by the European social model (ESM) and why the ESM is important. It then examines why the ESM, and its employment dimension in particular, is facing such difficulties before recognising that, in fact, the EU’s history demonstrates that the ESM has, in fact, a long-standing ability to regenerate and resurrect itself in different guises. Given this regenerative capacity, the article will conclude by considering the form EU social policy might take going forward.


Interested readers can browse the Working Paper Series at SSRN, or sign up to subscribe to distributions of the the e-journal.