China's climate governance is distinguished by the contrast between an abundance of policies on climate change and the lack of legally binding laws. This article argues that Chinese courts bridge this difference, which fosters a ‘rule of climate policy’ rather than a strict rule of law. The effective authority of Chinese climate policy is made possible in practice both by provisions of the Chinese Constitution and the prevailing use of legal reasoning. China's constitutional design of ‘ecological civilization’ delegates the duty and the power of managing climate change issues to the executive branch of its government. Most Chinese documents on climate governance have no binding legal force, which means, according to positive law, that they cannot serve as legal grounds for judicial decisions. Chinese judges, in deciding climate-related disputes, must combine legal provisions and non-binding materials to achieve regulatory goals. They use non-legal materials to support statutory or contractual interpretations and determine the existence or limits of rights, which alters the meaning and scope of existing legal terms and principles. This rule of climate policy is possible in the courtroom because judges justify public policy considerations with arguments of principle that are substantiated in various non-binding climate plans.

This article revisits the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy. This theoretical and pragmatic approach introduces a refreshing angle to the debate, revealing the paucity of any attempt to ascribe any legitimacy claim to a constitution with a doubtful normative claim and fraudulent attribution of its source and legitimacy to the people. The author finds the consent basis of constitutional legitimacy as most attractive to a divided state like Nigeria, and concludes by advocating the adoption of a blend of the principles of the constituent assembly and post sovereign constitution-making models for the production of a new people-driven and inclusive constitution to meet the needs of the Nigerian people.

Since its formation, the GATT/WTO system has facilitated a worldwide reduction of trade barriers. We return to a founding moment of the regime, the GATT 1947 (GATT47), and look closely at the liberalization process, analyzing exactly what concessions were granted to whom and in return for what. With these data, we evaluate three prominent explanations for the operation of the early GATT. First, we ask whether or not US negotiators granted asymmetric access to the US market to spur post-war recovery. Second, we look at how the rules adopted in GATT47 balanced the interests of import sensitive producers with those of the more nascent exporter interests. Third, we examine specific US concessions and ask whether or not the US used the domestic market to either increase the productive capacity of nations damaged during the war and/or to bolster unstable regimes. Our most general finding is that the US, at least in this first Round of the trade regime, was less a liberal warrior and more a seeker of stability, and that tariff setting was significantly constrained by the institutions governing global tariff negotiations.

In England, Parliament introduced the ‘necessary interest rule’ through the enactment of section 115 of the Charities Act 2011 (England and Wales), allowing ‘any person interested’ in a charitable trust to initiate charity proceedings against defaulting trustees in their administration of charitable assets. Nevertheless, insufficient attention has been paid to this rule despite it being initially enacted in 1853. Parliament has refrained from clearly defining the rule, and the courts have long been grappling with its meaning in determining whether a person is eligible to sue. This paper studies the necessary interest rule by exploring the way in which the courts have interpreted it and the uncertainties surrounding its operation. It is shown that, in the context of charitable trusts, the concern of securing the due administration and execution of the trust lies at the heart of the rule. The final section of this paper discusses the significant theoretical implications of the necessary interest rule. It considers the beneficiary-enforcer debate concerning the conceptual nature of express trusts and highlights the insights that analysis of the rule can provide into this debate.

In this paper, I take George Lakoff and Mark Johnson's thesis that metaphors shape our reality to approach the judicial imagery of the new criminal justice system in Mexico (in effect since 2016). Based on twenty-nine in-depth interviews with judges and other members of the judiciary, I study what I call the ‘dirty minds’ metaphor, showing its presence in everyday judicial practice and analysing both its cognitive basis as well as its effects in how criminal judges understand their job. I argue that the such a metaphor, together with the ‘fear of contamination’ it raises as a result, is misleading and goes to the detriment of the judicial virtues that should populate the new system. The conclusions I offer are relevant beyond the national context, inter alia, because they concern a far-reaching paradigm of judgment.

This article explores Japanese transactional lawyers’ attempts to transplant American legal practice concerning corporate acquisition contracts into Japan. Despite their extensive efforts to disseminate legal concepts originating from the common law into the Japanese legal community, their transplantation attempts produced somewhat unexpected results by the promoters of the transplant. Faced with unfamiliar drafting styles and legal concepts, Japanese courts interpreted American-style corporate acquisition contracts in accordance with traditional Japanese-style contract interpretation. As a result, attempts by Japanese practitioners at transplantation were incomplete. This incompleteness is attributable to their inattention to the differences in approaches to contract interpretation between Japanese and New York courts. New York's approach is much more formalistic and literal than Japan's. If fully aware, however, they could have filled the gap by using functional substitutes for American techniques of controlling adjudicators’ contract interpretation which would effectively operate under Japanese law. Japan's experience confirms that a widely supported view in comparative law scholarship that transplanted law does not necessarily operate in the recipient jurisdiction as it did in its host jurisdiction is applicable to the transplantation of contract drafting practices.

The rise in defamation claims in Malaysia has placed an onerous workload on the courts to deal with such matters. Against this backdrop, Hamid Sultan Abu Backer JC (as his Lordship then was) (Hamid Sultan JC) suggested in two separate High Court decisions that to alleviate the courts’ burden, matters pertaining to libel and slander ought to be constrained to the criminal courts through appropriate statutory amendments, including to the Criminal Procedure Code (Malaysia). In this paper, the author cautions against the learned Hamid Sultan JC's recommendations and proffers an alternative proposal in the form of media arbitration schemes to handle the growing influx of defamation claims. In particular, the salient features of the IMPRESS and IPSO Schemes from the United Kingdom are scrutinized in detail and measured in terms of suitability for a potential arbitration scheme in the Malaysian jurisdiction.

This article explains the extent to which Indonesia has international obligations to comply with the non-refoulement principle in the absence of ratification of the 1951 Refugee Convention. While Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees provides the general impression that Indonesia respects the non-refoulement principle, there is no specific text within Indonesian law and policy that regulates the matter. This article argues that Indonesia is legally bound by non-refoulement obligations under international human rights treaties to which it is a party, as well as under customary international law. It examines the extent of Indonesia’s non-refoulement obligations under the Convention Against Torture, the International Convention on Civil and Political Rights, the Convention on the Rights of the Child, and customary international law. It concludes that the Presidential Regulation was a missed opportunity for Indonesia to reinforce its non-refoulement obligations, as illustrated by the recent treatment of Rohingya asylum seekers near Aceh.

Automated facial recognition (AFR) is perhaps the most controversial policing tool of the twenty-first century. Police forces in England and Wales, and beyond, are using facial recognition in various contexts, from evidence gathering to the identification and monitoring of criminal suspects. Despite uncertainty regarding its accuracy, and widespread concerns about its impact on human rights and broader social consequences, the rise of police facial recognition continues unabated by law. Both the Government and the domestic courts were satisfied that police use of this technology is regulated adequately by existing statutory provisions regulating the processing of data and police surveillance generally. That is, until the recent judgment of the Court of Appeal in R (Bridges) v Chief Constable of South Wales Police and Others [2020] EWCA Civ 1058, where it was held that the respondent's use of AFR was unlawful. This paper provides an analysis of AFR, reflecting on the outcome of that case and evaluates its nuanced findings. We suggest that the judgment leaves considerable room for police AFR to continue with only minor, piecemeal amendment to the legal framework. Drawing on comparative experience and relevant socio-legal scholarship, we argue that the relatively unfettered rise of police facial recognition in England and Wales illuminates deeper flaws in the domestic framework for fundamental human rights protection and adjudication, which create the conditions for authoritarian policing and surveillance to expand.

Against the context of pending judicial proceedings between the State of Palestine and the United States of America (US) at the International Court of Justice (ICJ), this article critically examines the United Nations (UN) commitment to the international rule of law through an examination of its consideration of Palestine’s 2011 application for membership in the organization. The universality of membership of the UN is a foundation upon which the organization rests. The international law governing UN admission has accordingly been marked by a liberal, flexible and permissive interpretation of the test for membership contained in the UN Charter. In contrast, an assessment of the UN’s consideration of Palestine’s application for membership demonstrates that it was subjected to an unduly narrow, strict and resultantly flawed application of the membership criteria. An examination of the contemporaneous debates of the Council demonstrates that the main driver of this was the US, which used its legal authority as a permanent member of the Council to block Palestine’s membership. The principle argument used against membership was the US’s view that Palestine does not qualify as a state under international law. Notwithstanding, the State of Palestine has been recognized by 139 member states of the UN and has acceded to a number of treaties that furnish it with access to the ICJ. While a number of articles have been written about Palestine’s statehood, little has been written on the UN’s consideration of Palestine’s 2011 application for membership. Palestine v. USA provides a renewed opportunity to do so.

A popular way to try to justify holding defendants criminally responsible for inadvertent negligence is via an indirect or “tracing” approach, namely an approach which traces the inadvertence back to prior culpable action. I argue that this indirect approach to criminal negligence fails because it cannot account for a key feature of how criminal negligence should be (and sometimes is) assessed. Specifically, it cannot account for why, when considering whether a defendant is negligent, what counts as a risk should be assessed relative to the defendant's evidence.

This article argues that there is body of governing laws appearing widely throughout the global history of religions that warrants classification as constitutions. Like national constitutions, these religious constitutions present themselves as a form of “higher law” that declare the identity of a given a community, organize its structures of governing power, define its foundational norms, and authorize further acts of rulemaking. In this article, I offer an overview of these texts across several traditions and a defense of their importance in the study of comparative constitutional law. I then draw on fieldwork from Sri Lanka to provide a firsthand account of what a modern religious constitution looks like and how it works to govern one of the country’s largest communities of Buddhist monks. I conclude by urging scholars to view religion and constitutional law not as opposing legal domains but, rather, as homologous forms of social ordering that draw upon similar concepts and logics to address common human dilemmas.

This article presents a theoretical framework by which to understand how disasters are reconciled with a state’s existing obligations under international law. This ‘reactive’ model of disaster regulation hinges on two regulatory techniques, ‘disapplication’ and ‘exculpation’, both of which involve a deviation from the ordinary application of a norm owing to the occurrence of a disaster or to measures adopted by a state in relation to it. It proceeds to outline the various doctrines and mechanisms across different subfields of international law, including international human rights law, investment law and trade law, which may operationalize these techniques in disaster situations. Finally, it argues that the applicability of certain disapplication and exculpation mechanisms to disasters relies on an anachronistic view of such disasters as rare and episodic occurrences beyond human control. This puts these mechanisms at odds with the central objectives of international disaster law and their underlying sociological and scientific premises, which emphasize the need for an ‘adaptive’ model of comprehensive and prevention-oriented disaster regulation. Accordingly, this analysis exposes the conceptual limitations of the reactive model for disaster regulation and explains and validates the inclination toward an adaptive model within international disaster law. It also indicates how mechanisms within the reactive model could be recalibrated to better regulate disasters.

How do legal strategies at the European Court of Human Rights (ECtHR) vary among activists in highly asymmetrical social positions? Social scientists have demonstrated that legal mobilization raises the pressure on states to provide broader minority accommodation. While this may be true, such outcome-oriented studies overlook the fact that judicial mobilization is itself deeply imbued with inequalities and divergent interests among diverse activists. We lack comparative studies to examine how such differences play out in litigation. Drawing on a qualitative in-depth study among Sikh, Muslim, Catholic, Evangelical, and secular advocacy groups involved in religious freedom disputes at the ECtHR, this article argues that claims making often is a balancing act between legal power relations and extra-legal commitments, which leads to variation in activists’ leverage to challenge legal marginalization. First, hostile legal environments discourage more easily activists with weaker transnational connections who are in vulnerable domestic positions. Second, while the most marginalized readily seek to fit identity narratives into dominant legal frames of religion, more powerful actors can target the core of legal principles and power distribution within the legal field as such. Even when unsuccessful in judicial outcomes, they might affect broader political and legal debates.

Environmental law remains grounded in a ‘one-world world’ paradigm. This ontological structure asserts that, regardless of variation in world-construing, all beings occupy one ‘real’ world of discrete entities. The resulting legal system is viewed as an independent set of norms and procedures regulating the ‘human’ use of the ‘environment’ by specifying allowable harm rather than adjudicating on mutually enhancing relations. This legal form fails to fulfil its purpose of prevention and remediation, and constitutes a significant barrier to overcoming world(s)-destroying conditions. As such, we take up the injunction for a ‘legal ontological turn’ so as to lay bare these assumptions, and to be able to move beyond their constraints into a renewed exploration at the intersection of vastly differing legalities. In dialogue with systems-grounded ecological jurisprudence(s), Indigenous legal thinking, and anthropological insight, we seek to ground future discussions towards building a truly earth-sustaining form of environmental law for all beings.