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Legal Studies Research Paper Series Vol. 8, No. 11

The Faculty has published Volume 8 Number 11 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Markus Gehring & Freedom-Kai Phillips: Intersections of the Paris Agreement and Carbon Offsetting: Legal and Functional Considerations (42/2017)

As the global community debates the viability of approaches to climate change mitigation and adaptation, carbon offsetting is quickly becoming an avenue of choice. Following the adoption of the Paris Agreement at the Twenty first Conference of the Parties (COP21) to the United Nations Framework Convention on Climate Change (UNFCCC), and looking forward to the potential outcomes of COP22 in Marrakesh, carbon offsetting is gaining increased emphasis, in particular in the context of ongoing discussions at ICAO relating to aviation-based carbon emissions. This policy brief explores the intersection of the Paris Agreement and carbon offsetting and summarizes the legal and functional considerations. Carbon offsetting is explained, with particular emphasis on outlining the legal framework under the UNFCCC, including the Clean Development Mechanism (CDM) and the Paris Agreement of 2015, followed by a brief summary of project types, criteria, and standards used to determine the quality of carbon offsets. As offsetting continues to grow in popularity and application, increased scrutiny must be placed on the quality of offset credits as carbon credits are inherently unequal.

Brian Sloan & Fenton-Glynn Claire: Commentary and Judgment on Re C v XYZ County Council (43/2016)

The aim of the Children’s Rights Judgments project is to redraft pre-existing court judgments from a children’s rights perspective. The rewritten judgments “shed light on the conceptual and practical challenges of securing children’s rights within judicial decision-making and explore how developments in theory and practice can inform and (re-)invigorate the legal protection of children’s rights”.

This commentary and judgment concern a case about whether a child conceived during a one-night stand should be adopted at the behest of her mother, or whether more effort should be put into developing the child’s relationship with other members of the natural family.

Sarah Nouwen: The Story of His Life: Philippe Sands’ ‘East West Street’ (44/2017)

This essay, forthcoming in the British Yearbook of International Law, reviews Philippe Sands’ book ‘East West Street’, and the documentary and theatre performance that preceded the book’s release. These works tell unforgettable stories of Lviv and Nuremberg, of Hersch Lauterpacht, Rafael Lemkin and Hans Frank, of genocide and crimes against humanity.

The book straddles several genres: according to its cover it is ‘part historical detective story, part family history, part legal thriller’. But it is more than that: it is also part psychological drama, part ‘third-generation Holocaust representation’, part Yizkor. This essay argues that it is best read as a life story – the story of Sands’s life. It is ‘the story of his *life*’ in that Sands has again, and better than ever, popularised international law. But it is also ‘the story of *his* life’: Sands himself is the character who binds the stories together. Read as a life story, the book stands out as a unique, unputdownable and unpindownable personal exploration of family silences and histories, that cannot be generalised.

Kirsty Hughes: Brexit and the Right to Remain of EU Nationals (45/2017)

This article examines the role of human rights law in protecting the residency of EU nationals living in the UK in the aftermath of the Brexit referendum. It explains how human rights law protects residency by compelling the UK to treat all migrants as individual human rights holders, not as a ‘class’ to be dealt with through mass expulsion. Moreover, Article 8 of the European Convention on Human Rights provides many EU nationals with a right to remain in the UK based on their family or personal ties. Once that right is engaged, any Article 8(2) ECHR analysis must take into account the individual human person and her human rights, not just the policy with regard to EU citizens as a group. It is simply inconceivable that the UK would be able to justify expelling a migrant on the basis of his or her nationality.

Having established that residency does not simply lie within the discretion of the UK Government, this article then contends that the stance taken by the Government since the Brexit referendum undermines the security of residency that human rights law provides. In that context it argues that human rights law can, and should, do more for migrants than simply preclude deportation, and in particular that it should prevent the state from obfuscating migrants’ residency rights. The issues raised by Brexit are unique, but there are some similarities in cases relating to the breakup of the Soviet Union and the Socialist Federal Republic of Yugoslavia. Although many of those cases evince a meagre approach to migrants’ rights, the European Court of Human Rights’s stance that rights must be genuine and not illusory, can, and should, be harnessed to recognise that states have immense power to threaten and undermine migrants’ residency even if they do not expel migrants or issue deportation orders. There is thus potential for Article 8 ECHR to protect those who, although not subject to a deportation order, are vulnerable, particularly when they are faced with delays in regularising or otherwise rectifying uncertainty. This article offers a way of understanding the ECHR rights of migrants and a proposal for us to argue for these rights, make them clear, and insist that the state respects them. In the last resort, it offers a way that we should expect the European Court of Human Rights to engage with these rights, in order to protect vulnerable migrants, and in line with the purpose and history of the Convention.

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