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Edinburgh Law School Legal Studies Research Paper Series - March 2020

Wed 1 April 2020

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The latest in the Legal Studies Research Paper Series (Vol. 8, No. 2: Mar 30, 2020) from Edinburgh Law School is now available.

View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN

Papers include:

Paris Agreement, Article 3

  • Forthcoming in G Van Calster & L Reins, Research Handbook on Climate Change Mitigation (E Elgar, 2020)
  • Edinburgh School of Law Research Paper No. 2020/03

Navraj Singh Ghaleigh, Edinburgh Law School
Cleo Verkuijl, Stockholm Environment Institute (SEI)

Abstract: The introduction of “nationally determined contributions” into the Paris Agreement was a risky if necessary strategy. NDCs are risky in that they are a novel device which could well underdeliver the key climate goods of mitigation, adaptation, and finance; but they are necessary given that they were likely the only means to achieve buy-in from key negotiating parties.

Enacting the 'Civilian Plus': International Humanitarian Actors and the Conceptualization of Distinction

  • Leiden Journal of International Law, Vol. 33, No. 2, June 2020 (Forthcoming)
  • Edinburgh School of Law Research Paper Forthcoming

Rebecca Sutton, Edinburgh Law School

Abstract: The civilian-combatant frame persists as the main legal lens through which lawyers organize the relationships of conflict zone actors. As a result, little attention has been paid in international legal scholarship to different gradations of ‘civilianness’ and the ways in which some civilians might compete to distinguish themselves from each other. Drawing attention to international humanitarian actors—particularly those working for NGOs—this article explores the micro-strategies these actors engage in to negotiate their relative status in war. Original qualitative empirical findings from South Sudan illuminate the way in which humanitarians struggle over distinction with individuals working for the UN peacekeeping mission, UNMISS. As is shown, humanitarian actors are doing away with a static civilian-combatant binary in their daily practice. A more fluid logic informs both their self-conceptualization and their interactions with others who share the operational space. Humanitarian actors envision civilianness as a contingent concept, and they operate according to a continuum along which everything is a matter of degree and subtle gradation. As civilianness is detached from the civilian, any given actor might acquire or shed civilian-like, or combatant-like, characteristics at any moment. The distinction practices that humanitarian actors enact can be understood as a bid for legibility, so that they might be rendered intelligible in international law and in the eyes of other actors as a special kind of civilian—the ‘civilian plus’.

The ‘Phantom Local’ and the Everyday Distinction Practices of Humanitarian Actors in War: A Socio-Legal Perspective

  • Rebecca Sutton, The ‘Phantom Local’ and the Everyday Distinction Practices of Humanitarian Actors in War: A Socio-Legal Perspective, in Lisa Richey and Lilie Chouliaraki (Eds.), New Political Science, Special Issue: Everyday Humanitarianism: Ethics, Affects and Practices, Vol. 40, No.4, 2018, pp.
  • Edinburgh School of Law Research Paper Forthcoming

Rebecca Sutton, Edinburgh Law School

Abstract: This article is concerned with the everyday practices of international humanitarian actors who deliver assistance in armed conflict zones. Drawing on original fieldwork conducted in South Sudan, it elucidates how humanitarian actors engage with the principle of distinction in international humanitarian law (IHL). The article considers how the desire to enforce distinction impacts humanitarian actors’ relationships with others, and introduces the concept of everyday distinction practices. These practices have an important performance component, designed to appease the “phantom local.” It is proposed that such practices may have adverse implications for the humanitarian– beneficiary encounter. By positioning war-affected populations as an audience for distinction, everyday distinction practices reconfigure the victims of war from being receivers of aid to perceivers of aid. By lumping beneficiaries together with armed actors as part of the “phantom local,” distinction practices also paint the victims of war as an object of mistrust, fear, and potential danger.

How the Emotions and Perceptual Judgments of Frontline Actors Shape the Practice of International Humanitarian Law

  • Forthcoming in Edward Elgar Research Handbook on Law and Emotion (Susan A. Bandes, Jody Lynee Madeira, Kathryn Temple and Emily Kidd White eds. 2020)
  • Edinburgh School of Law Research Paper Forthcoming

Rebecca Sutton, Edinburgh Law School

Abstract: Positioned in a nascent ‘affective turn’ in international humanitarian law (IHL) scholarship, this chapter draws attention to the long-overlooked emotional life and perceptual judgments of those who are expected to enact IHL. With reference to original fieldwork conducted at civil-military trainings in Sweden, Germany, and Italy, the chapter examines the interplay of law and emotions in everyday humanitarian-military interactions. As is shown, military actors are frustrated by the routine efforts that humanitarian actors make to dissociate from them. Complicating matters, humanitarian actors also sometimes call upon military actors for help. The chapter conceptualizes these humanitarian practices as a relational effort to cultivate detachment. The way that military actors experience humanitarian detachment prompts them to assemble an imaginary humanitarian figure actor who is aloof, mercurial, and often feminized. We thus find one soldier likening humanitarian NGOs to an ex-girlfriend who ‘only calls when she wants to cuddle’’. The chapter proposes that these festering sentiments of hostility influence the way in which military actors interpret their legal mandate to facilitate the work of humanitarian actors. The more general claim advanced is that we need to recognize individual conflict actors as people in order to fully grasp how IHL hits the ground.

Who Is Responsible for Data Processing in Smart Homes? Reconsidering Joint Controllership and the Household Exemption

  • Edinburgh School of Law Research Paper Forthcoming

Jiahong Chen, University of Nottingham
Lilian Edwards, University of Newcastle Law School
Lachlan Urquhart, Edinburgh Law School, Horizon Digital Economy Research Institute
Derek McAuley, University of Nottingham

Abstract: The growing industrial and research interest in protecting privacy and fighting cyberattacks for smart homes has sparked various innovations in security- and privacy-enhancing technologies (S/PETs) powered by edge computing. The wide range of actors contributing to certain technical solutions with a view to building a safer smart home means that the legal landscape for those technologies is highly complex. To determine how responsibility and accountability should be fairly assumed by stakeholders, there is a pressing need to first clarify the roles of these parties within the existing data protection (DP) legal framework. This article focuses on two legal concepts under the GDPR as the mechanisms to (dis)assign responsibilities to various categories of entities in a domestic IoT context: joint controllership and the household exemption. A close examination of the relevant provisions and case-law shows a widening notion of joint controllership and a narrowing scope for the household exemption. While this interpretative approach may prevent evasion of accountability in specific cases, it may lead to the unintended consequence of imposing disproportionate compliance burdens on developers, contributors, and users of smart home safety technologies. By discouraging users to adopt S/PETs, DP law may likely lead to a lower level of DP protection. The differential responsibilities among joint controllers as envisaged in case-law may reconcile the tensions to some degree, but certain limitations remain. The regulatory dilemma in this regard highlights some underlying assumptions of DP law that are no longer valid with regard to a smart home, and thus calls for further conceptual and empirical studies on fair reassignment of responsibility and accountability in a domestic IoT setting.

Glawischnig-Piesczek v Facebook on the Expanding Scope of Internet Service Providers’ Monitoring Obligations

  • (2019) European Data Protection Law Review 5(4):573 – 578
  • Edinburgh School of Law Research Paper Forthcoming

Paolo Cavaliere, Edinburgh Law School

Abstract: Article 15(1) of the E-Commerce Directive does not preclude a court of a Member State from: ordering a host provider to remove or block access to information identical to the content of information previously declared unlawful; ordering a host provider to remove or block access to information equivalent to information previously declared unlawful, provided that the content remains essentially unchanged and the differences in the wording are not such as to require the host provider to carry out an independent assessment beyond the elements specified in the injunction; ordering a host provider to remove or block access to information covered by the injunction worldwide within the framework of the relevant international law.

The Concept of Money in the 4th Industrial Revolution – A Legal and Economic Analysis

  • Edinburgh School of Law Research Paper Forthcoming

Emilios Avgouleas, Edinburgh Law School
Sir William Blair, Queen Mary University of London, Centre for Commercial Law Studies.

Abstract: This article explores some of the changes that the 4th Industrial Revolution brings to our understanding of money. Our analysis does not suggest that the only valid form of money is that provided or backed by the state. We rather argue that it is unlikely that money-like means of payment will prove sustainable in the long-term if not perceived as being vested with some form of legality. Still, mere legality will not prove to be sufficient for the new payment instruments to qualify as money. They must also prove to be able to serve as means of exchange/payment. A sharp reduction in value will diminish the credibility of the payment promise and thus user confidence/trust. Like acceptance of payment on sight, the use of money as a common measure of value is one of the most important properties of fiat (and metallic) money. Retention of value in times of stress is fundamental as regards the new assets’ ability to act as a measure of value and its ability to fit with common perceptions of money. The requisite enquiry should be based on empirical studies of the intertemporal behaviour of the instrument. We suggest that fiat money aside, instruments that could eventually qualify as “money” ought to pass the dual test of legality and relative retention of value. This approach does not suggest a return to the metallic rule, which would limit free circulation of money. It is rather a pragmatic reformulation of the characteristics that means of payment, which do not enjoy the backing (will) of the state, must exhibit to enjoy quasi-money or money-like status. Assets that display high volatility are, thus, unlikely to fulfil the functions of “money” and should instead be dealt under the law of investments if they qualify as such.

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