Chapter 8 focuses on the imperial state level to examine the legal and political logic informing the final adjudication of the case in 1799, a decision that constituted a shift in the decisions the Council of the Indies and colonial tribunals had been taking in the 1780s. The chapter examines the political reasons related to mining utility and security that informed the shift and the juridical basis imperial jurists used to ground the case’s outcome. Ultimately, the Bourbon Crown ruled in favor of the cobreros but attached caveats related to Indian law to their collective freedom. The chapter ventures into the immediate aftermath of the Freedom Edict of 1800 to examine the challenges that emerged in the colony regarding the actualization of the decreed emancipation. It also interrogates the possibility of compensation or reparations to the cobreros for their wrongful enslavement.

To litigate or not to litigate, that is the question any Chinese companies operating in the United States long enough must contemplate. For American companies, litigation is nothing but an unavoidable business risk and often a vital competition strategy, routinely dealt with by legal and managerial professionals applying monetarized cost–benefit analysis. Such analysis typically incorporates attorney fees and other litigation expenses, potential reputational damage, time and human resource consumption, and the present value of expected litigation gains or losses. By contrast, litigation in China carries complex social meanings and is often avoided to preserve long-term cooperative relationships or to signal desirable attributes to uninformed third parties. When lawsuits do occur, they are often handled by stakeholders without professional legal assistance. Disputants consider a wide range of material and nonmaterial interests that are shaped by both formal institutions undergoing significant transformation and complex, entrenched social norms governing dispute resolution. Chinese companies immersed in these two disparate institutional environments approach legal disputes in the United States.

The ICJ is the primary court for legal disputes among governments. It hears cases in which one country claims that another country has violated its obligations under international law. This chapter introduces the ICJ by examining its legal foundation in the Statute of the ICJ, and shows its powers and limits in practice by looking at the cases of Belgium v. Congo (on genocide) and Australia v. Japan (on rights and obligations for whale hunting under the International Convention for the Regulation of Whaling).

On AI-assisted adjudication, concerns including biases (such as automation bias, anchoring bias, contrarian bias, and herd bias) and ethical worries (such as human adjudicators ceasing to be decision-makers, excessive standardisation of decisions, and the fact that judges may be pressured to conform to the AI’s predictions) can be addressed. Adjudicators may use AI to assist them in their decisions in three aspects: training and implementation; actual use; and monitoring. Because AI will not be able to provide the legal justifications underlying its predictions, the human adjudicator will have to explain why the AI-generated prediction is legally justified. AI will not replace adjudicators.

AI will greatly assist in the administration of express and charitable trusts and also be of significant benefit to trust law in acting as an adjudicator. AI should be able to act as an acceptable trustee of an express trust, and resulting trusts do not insurmountably challenge AI, either as trustees or adjudicators. The proposition that discretionary trusts are unsuited to AI administration can be rejected along with the notion that the discretionary nature of remedies makes this area of law unsuited to AI adjudication. Although constructive trusts may pose some difficulties for AI, this may be solved through legal reform. Further, the difficulties that AI trustees will create are not incapable of practical solutions.

Biases in decision-making based on race, ethnicity, social class, gender, sexual orientation, and other social identities are pervasive in the criminal justice and legal systems. Likewise, the positionality of legal actors and lay people from diverse groups both influences and constrains legally relevant judgments. This chapter uses a case study of racially biased judgments in the criminal justice and legal systems to illustrate how judgment processes can lead to unequal outcomes across social groups. It then describes ways in which law-psychology can expand research on diversity in legal decision-making, addressing issues related to social class, discrimination against LGBTQ+ people, and reproductive decision-making by women. It also discusses frameworks and perspectives that provide valuable insights on legal decision-making but which often are overlooked by psycholegal scholars, including intersectionality, Critical Race Theory, and the abolition movement. The chapter concludes by examining the limits of a decision-making framework for understanding unequal outcomes in legally relevant contexts, which frequently are the result of structural and implicit biases in addition to deliberate judgments.

The author attempts to unravel the close conceptual and practical connection between consent and autonomy. The chapter argues that consent is the vehicle of autonomy, vehicle through which States give themselves their own rules, both primary rules and secondary rules. Because the exercise of autonomy in the international society faces contextual limits, linked to the self (auto) and to the law (nomos), it is claimed, that consent appears not only to be characterized by power, but also by limitations. This holds true for consent in international law-making as much as for consent in international dispute settlement. The chapter focuses on both categories, discussing the theory of sources and institutional law-making with respect to the former and jurisdictional matters and applicable law with respect to the latter. It concludes – prospectively – with some thoughts on the future of autonomy and consent in international legal theory and practice

Although Macau became a Special Administrative Region of the People’s Republic of China in 1999, foreign judges from Portugal have continued to be appointed to Macau’s courts. Macau is remarkable for the way that the institution of foreign judges is emblematically inscribed in the Basic Law, and in this context, foreign judges have a dual value, not only bringing their individual expertise and judicial values to the Macau judiciary, but also importing the characteristics and values of the legal system in which they originate. This dual role helps to fulfil the ‘One Country, Two Systems’ policy and uphold its corollaries, including the continuance of a legal system that is different from that in the Mainland, based on the principles of judicial independence and impartiality. The chapter highlights two worrying trends: the declining number and proportion of foreign judges appointed to Macau’s courts, and the exclusion of foreign judges from cases involving ‘national security’ issues.

Foreign judges sit on domestic courts in over 50 jurisdictions across the world. The practice raises underexplored questions about the significance of foreignness and mobility to the judicial role. This chapter draws on the contributions to The Cambridge Handbook of Foreign Judges on Domestic Courts to set out a framework for analysing the phenomenon of foreign judging and its legitimacy and effectiveness. Drawing on various incidents of foreign judging, it disaggregates five rationales for the use of foreign judges on domestic courts: necessity, institution building, distance, expertise and reputation. It identifies size, the domestic legal system, and the degree of international involvement as factors that make some jurisdictions more receptive than others to foreign judges. The chapter canvasses the implications of foreign judging for the identity and role of the judge, judicial independence and accountability, and adjudication and the development of the law. The experiences of jurisdictions across the globe suggest that foreign judging is a diverse phenomenon which will continue to evolve in contemporary conditions of globalisation.

This chapter explores third-party mediation and peacekeeping. Mediation, along with arbitration and adjudication, is a form of peacemaking. Peacekeeping means maintaining durable peace after conflict has ended. The UN is one of several kinds of actors that engage in peacekeeping missions. They leverage the costs belligerents would pay if they return to war, provide information, reduce uncertainty, and provide political cover to facilitate political concessions. Also discussed in the chapter are peacebuilding efforts, including developing the proper political, legal, social and economic infrastructure to stabilize the security environment. Challenges for third parties seeking to engage successfully in peacekeeping and peacemaking include the difficulties they face in providing long-term incentives for peace, the possibility of distorting information flows such that peace is less stable, and being sensitive to local contexts. The chapter applies many of its concepts to a quantitative study of the causes of peacekeeper sexual exploitation and abuse, and a case study of third-party involvement during the conflicts in the Great Lakes region of Africa in the 1990s and 2000s.

This chapter examines the institutional context of the Court. It focuses first on the Court’s function as a court, i.e. as the principal judicial organ of the United Nations. It then considers the Court’s relations with States, as an international court. Finally, he considers the Court’s institutional grounding as an organ of the United Nations, and examines its relationship with the United Nations. Professor Ginsburg argues that there is a gap between the Court’s formal institutional structures and its actual operation in practice, and emphasises in particular the way in which the Court has taken a central role in the development of international law.

A growing sociological and empirical literature focuses on lawyers as part of the globalization and transnationalization of law.Sociological approaches treat arbitration tribunals as embedded in society and arbitral awards as the product of a network of actors.A common creed of peaceful international dispute settlement binds together these actors. Arbitral tribunals are institutions that develop specific institutional and legal rationalities. This chapter draws together the existing scholarship on arbitrator behaviour with the aim of identifying gaps. Section II surveys the theoretical contributions on the sociology of international arbitrators. Section III surveys empirical studies on arbitrators.

The second power of the police is used to collect evidence and people, either summarily or by warrant, and present them to a magistrate for adjudication, principally in matters of criminal law. The traditional model assumes the purpose is to establish guilt and determine the appropriate punishment, with the result being incarceration and the harmful and disruptive consequences that often follow from it. A broader conception considers that the law is what signals the government’s legitimate interest in regulating a behavior owing to its risks and consequences, or the manner in which it violates rights, and these statutes are what empower the police to operationalize the government’s interest. This does not mean, however, that the necessary response should always be punitive; it can instead be linkage to care, treatment, or other interventions that address behavior. The chapter closes by observing that the criminal law is nonetheless what empowers the police to act in response to behaviors regardless of the consent or intentions of others, and if the government wishes to retain this ability while shifting crisis response away from police, it will need to solve the puzzle of how actors not empowered by the criminal law can otherwise decisively represent the government’s regulatory interests regarding individual behavior.

The idea of determinatio – first identified and analysed in natural law theory – is crucial for understanding international human rights adjudication. Human rights, as they appear formulated in international human rights treatises and declarations, require specification, implementation, concretisation, i.e., determinatio, at the domestic level. I argue that there are good reasons for this to be so. One such reason is that determinatio allows for the application of a norm to be sensitive to the particular circumstances in which it takes place. Determinatio entails deference in human rights adjudication, the latter being the legal consequence of the reasonable space for discretion granted to states which is entailed by determiatio in international human rights law. Close attention to determinatio allows us to see well-known doctrines of deference (such as the doctrine of the margin of appreciation, of regional consensus and of incrementalism) in a different light—not as concessions to state sovereignty, but as grounded on reasons internal to the legal practice of human rights law, of which determinatio is an integral part.

Proportionality has been a recurrent method of adjudication in the Inter-American Human Rights System in different types of cases – mainly, in cases of limitations of human rights and in cases of equality and nondiscrimination. This chapter focuses on the use of proportionality by the Inter-American Court in the second group of cases. First, the chapter addresses the complexity of equality and nondiscrimination positive provisions, with specific emphasis on the formulas employed by the American Convention on Human Rights. Second, it discusses the type of cases in which proportionality is useful and serves its purpose of narrowing discretion in the adjudication of equality and nondiscrimination provisions, which are those involving direct discrimination. It also presents reasons to be skeptical about the usefulness and appropriateness of proportionality in the adjudication of other types of cases, specifically those dealing with covert and indirect discrimination. The analysis also discusses the potential use of proportionality in other cases related to the substantive dimension of equality and nondiscrimination.

Chapter 7 provides an overview of the international law scene in China during the 1920s and, in particular, the new phenomenon of continuous representation at key international organizations and international law settings, including the role of China’s diplomats at the League of Nations, its first international judge, Wang Chonghui, and its first members of the Institut de Droit International and other bodies of elite international law professionals. At the same time, the chapter examines the new emergence of major contesting ideologies and schools of thought regarding international order and international law – competing internationalisms.

This introduction lays out the context, scope, theoretical framework, core arguments and structure of the study. It problematises the focus on synergies between environmental protection and human rights in existing literature, and emphasises the importance of retrieving, exploring and critically unpacking the conflicts that underpin this relationship. The analysis introduces the central interrogation of the book: how environmental protection laws can collide with human rights concerns, and how regional human rights courts balance individual or collective human rights against the interest in environmental protection, when environmental protection and human rights collide. Several sub-questions unfold from this main interrogation. How do regional human rights courts address, conceive of and frame conflicts with environmental laws, many of which include considerations that are part and parcel of existing human rights? Which conflict-management techniques and argumentative strategies do they employ to settle such trade-offs? And what does this tell us about how the environment is represented, and how its protection is legally justified in relation to human concerns? The summary of the main findings of the book lay bare the importance of the project, the gaps it aims to fill, and how these novel insights reconfigure the relationship between environmental protection and human rights.