Legal Studies Research Paper Series Vol. 10, No. 1

The Faculty has published Volume 10 Number 1 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Nicholas McBride: The Defence of Illegality: Not a Principle of Justice? (67/2018)

This paper criticises the common trope that the defence of illegality is not based on a principle of justice. It sets out three different understandings of what justice is concerned with - a moral, allocative, and political understanding - and shows that whichever understanding of justice one adopts, the defence of illegality can be defended as 'just' in the way it operates.

Eyal Benvenisti: Why International Organizations are Accountable to You (68/2018)

The aim of this essay is to identify a legal basis for accountability obligations of international organizations (IOs) toward individuals affected by their policies. More specifically, I ask why should, for example, the European Union or the World Trade Organization be accountable to individuals who are not citizens of states parties to those organizations, but nevertheless may be affected by their policies. I explore three traditional foundations for accountability obligations under domestic law as potential grounds for such accountability obligation: the rule of law, human rights, and trusteeship. After rejecting the first two candidates, the essay offers the trusteeship concept as one that can and should serve as the normative bedrock for the emergence of administrative law at the global level. I also argue that this concept is already ingrained in the law that is incumbent upon IOs.

Sara Kendall & Sarah Nouwen: International Criminal Justice and Humanitarianism (69/2018)

Part of the forthcoming Oxford Handbook on International Criminal Law, this chapter explores the relationship between international criminal justice and the field of humanitarianism. From some perspectives within these fields, humanitarianism and international criminal justice are diametrically opposed (international criminal justice against humanitarianism). Whilst recognising the differences in mandates and operational practices, this chapter argues that the fields nevertheless share certain attributes and challenges. Building on these parallels, the chapter illustrates two central issues faced by both fields: their relationship to and enactment of politics and their accountability to various constituencies (international criminal justice and humanitarianism). In addition to facing analogous challenges, the fields may in fact overlap when international criminal justice addresses humanitarian concerns by undertaking relief provision, or when lawyers use international criminal justice as a practice to alleviate suffering (international criminal justice as a form of humanitarianism). The chapter concludes with a call for further reflexivity in the field of international criminal justice, inspired by developments in humanitarian scholarship and practice.

Shona Stark: Non-fettering, Legitimate Expectations and Consistency of Policy: Separate Compartments or Single Principle? (70/2018)

This paper assesses the apparent tension between the need for both flexibility and consistency in administrative law. First, it considers the relationship between a possible new 'consistency of policy' ground of review and its progenitor, legitimate expectations.

Second, it considers the relationship between those two grounds of review on the one hand and the non-fettering principle on the other. It is argued that all three grounds of review are necessary to provide both optimal transparency in the courts' judgments, and to guide administrators' decision-making.

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