Legal Studies Research Paper Series Vol. 8, No. 5

The Faculty has published Volume 8 Number 5 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Julia Powles et al: Boundaries of Law: Exploring Transparency, Accountability, and Oversight of Government Surveillance Regimes (16/2017)

Modern information technologies have given governments an unprecedented ability to monitor our communications. This capability can be used to fight terrorism and serious crime through targeted surveillance that is proportionate and subject to judicial control. What we have witnessed, however - as evidenced by the revelations of whistleblower Edward Snowden - is exponential growth in indiscriminate, generalised access to bulk communications and Internet data (often referred to as "mass surveillance").

Experts surveyed in the 2014 Web Index concluded that 84% of the 86 countries covered lacked even moderately effective oversight and accountability mechanisms to protect Internet users from indiscriminate surveillance. A finding as worrying as this needs to be tested, so we carried out a deeper comparative analysis of a smaller sample of countries: Kenya, DR Congo, South Africa, Colombia, Germany, Myanmar, India, Pakistan, France, Turkey, Egypt, Russia, the United Kingdom and the United States. We conducted interviews and desk research on each jurisdiction to get a better idea of the current state of affairs. We have also tried to analyse intra-country intelligence sharing networks and "clubs", but since much of this occurs without accountability, transparency, or meaningful oversight, there are limits to that analysis.

Sarah Nouwen & Michael A. Becker: Tadić v. Prosecutor: International Criminal Tribunal for the Former Yugoslavia, 1995 (17/2016)

Forthcoming in Landmark Cases in Public International Law (Hart, 2017), this chapter investigates the ‘landmark’ status of the decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Tadić v Prosecutor (1995). The chapter differentiates between two types of landmarks: signposts for other travelers, indicating the direction to be followed, or high-water points, relics of a particular moment in time. This chapter considers the significance of the Tadić case in both senses of landmark. After reflecting upon the case as a matter of diplomatic and legal history, it analyses the interlocutory appeal decided by the Appeals Chamber on 2 October 1995 as a landmark with respect to three areas of international law: general international law, international humanitarian law and international criminal law. It ends with a perspective on the significance of the interlocutory appeal for legal reasoning in international law. It concludes that in some areas the Tadić Interlocutory Appeal has been a signpost (for instance, its validation of the power of the Security Council to pursue the project of international criminal law and developments in international humanitarian law, particularly the diminishing relevance of the distinction between international and non-international armed conflict), while in others more a high-water mark (for example, as a case study in judicial law-making and legal reasoning that invokes natural law or appeals to morality to overcome perceived shortcomings in the positive law).

Federica Paddeu: Clarifying the Concept of Circumstances Precluding Wrongfulness (Justifications) in International Law (18/2017)

This paper seeks to clarify the concept of circumstances precluding wrongfulness in international law which, according to Ian Brownlie, is a concept that 'had never been properly worked out' by the ILC during its work on the Articles on State Responsibility. Indeed, it is not infrequent to find in the case-law and the literature diverse, and often contradicting, explanations of this concept and its effects.

The paper first elucidates the concept of circumstances precluding wrongfulness and its relation with the notions of breach, internationally wrongful act, and excuse. It then considers the operation of these circumstances by means of two different models for the representation of reasoning with justifications: one based on deductive reasoning and the other on dialogic reasoning. The paper concludes that justified conduct does not constitute a breach of international law and that it must be qualified as lawful.

Paul Daly: The Court and Administrative Law: Models of Rights Protection (19/2017)

My goal in this essay is to identify the models of rights protection that have existed in Canadian judicial review of administrative action, to assess their advantages and disadvantages, and to suggest future pathways for the development of rights protection in Canadian public law.

I identify three current and past models: the vires model, from the pre-Charter era; the proportionality model, from the early-Charter era; and the deference model, which is currently in use. Assessing the advantages and disadvantages of these models allows me to set out an alternative model – the public law model – which draws on the strengths of both administrative law and constitutional law to provide enhanced judicial protection for rights.

In the public law model, the proportionality model is retained, such that the Oakes test is applied to assess the proportionality of infringements of the Charter, but the vires model is enhanced to strengthen the protection of rights, such that the animating concern of the deference model – that administrative law be given a proper role in rights protection – is taken into account.

The lesson of my survey of models of rights protection is that the vires model, the proportionality model and the deference model all have some advantages but also have disadvantages. A consideration of their relative merits leads to the conclusion that a public law model, with its combination of ex ante and ex post controls, would provide superior protection to Charter rights liable to be infringed by administrative decisions.

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