This chapter clarifies the substantive scope and core content of the right to science as enshrined in Art. 15 ICESCR. By employing a reverse-engineering methodology grounded in the core obligations identified by the Committee on Economic, Social and Cultural Rights in General Comment No. 25, the chapter systematically derives the core rights of the right to science. The analysis identifies four distinct yet interrelated substantive rights: the right to enjoy the benefits of scientific progress and its applications (Art. 15(1)(b) ICESCR; the right to the conservation, development and diffusion of science (Art. 15(2) ICESCR); freedom of science (Art. 15(3) ICESCR); the right to international scientific ollaboration (Art. 15(4) ICESCR) and the right to equality and non-discrimination in science. Each dimension incorporates essential, immediately enforceable core rights, which constitute the non-derogable nucleus of the right to science, thereby making them inherently justiciable irrespective of resource limitations. The findings contribute to bridging gaps between theoretical frameworks and practical adjudication, enhancing the protection and realisation of the right to science.

This chapter examines the justiciability of the right to science, identifying historical, conceptual and legal factors that have contributed to its marginalisation. It first addresses the historical evolution of human rights from the unified Universal Declaration of Human Rights into two distinct Covenants, leading to misconceptions around ESC rights’ justiciability. Clarifying the concept of justiciability, the chapter distinguishes between formal justiciability existing mechanisms for adjudication – and material justiciability, concerning clarity and enforceability of the right’s normative content. The analysis systematically challenges misconceptions about ESC rights’ alleged non-justiciability and evaluates contemporary international, regional and national enforcement mechanisms. Highlighting a significant gap between established formal justiciability and underdeveloped material justiciability, the chapter argues for greater definitional clarity regarding the normative content of the right to science, setting the stage for the subsequent chapters which further articulate this right’s substantive elements and promote its practical enforcement.

This chapter analyses security exceptions in international trade law, focusing on their interpretation and application within the World Trade Organization (WTO) and preferential trade agreements (PTAs). It examines the evolving nature of national security concerns, particularly in cybersecurity, and how these concerns intersect with trade regulations. The chapter discusses the justiciability of security exceptions, the level of deference accorded to states in defining their security interests, and the challenges posed by the expansion of security concerns beyond traditional military domains. It also evaluates the adequacy of existing WTO and PTA frameworks in addressing contemporary security issues, suggesting that further innovations may be necessary to balance trade liberalisation with national security imperatives in the digital age.

This Chapter examines whether and to what extent WTO members can be accountable for applying security measures before international adjudicators and how the invocation of security exceptions can impact the international courts’ or tribunals’ proceedings. The idea of balancing free trade and national security is bound to substantiate itself in a compression of the right to sovereignty, which can be assessed through the good faith review or the use of a necessity test. The investigation of the meaning and mechanisms of these tests and the scope of discretion that should be granted to the decisions of WTO members in their national security matters allows for establishing the framework for reviewing security exceptions.

This chapter explores “trust-rights” climate litigation, claiming sovereign obligations to protect the atmosphere, public rights to climate stability, or both. It begins with scholarly consideration of these strategies, reviewing sources of environmental rights, application of public trust principles to climate, and critiques of the atmospheric trust. It reveals the hidden duality of trust-rights climate claims as a pairing of reciprocal rights and duties. Then it reviews the explosion of trust-rights climate advocacy around the world, including the conclusion in Urgenda Foundation v. Netherlands that the nation had failed its duty under the European Convention on Human Rights to limit contributions to climate change; the failed attempt in Juliana v. United States to partner an atmospheric trust claim with constitutional rights asserted under the Due Process Clause; and a new generation of advocacy to build trust-rights principles into U.S. state constitutions. Finally, it considers the arguments against – and in favor of – trust-rights advocacy, addressing both constitutional concerns about the separation of powers and practical concerns about bringing uncertain impact litigation.

Chapter 6 on Separation of Powers offers a comprehensive exploration of how the balance of power between the judiciary and other branches of government plays out in climate litigation. The authors critically analyse key cases where these doctrines have been invoked, shedding light on how these doctrines shape the courts’ approach to climate cases. They underscore the significant variation in how this issue is dealt with across jurisdictions, acknowledging the diversity of constitutional and legal frameworks globally. Despite this diversity, the authors distil an emerging best practice where courts are increasingly recognising their crucial role in safeguarding fundamental rights and constitutional values in the context of climate change. This recognition is not a one-directional or universal trend but a nuanced evolution detectable across various jurisdictions and legal systems.

Complaints procedures offer a unique opportunity for individuals and groups to have claims of human rights violations considered and their rights vindicated in a judicial or quasi-judicial procedure. On the one hand, for non-governmental organisations (NGOs) and human rights lawyers, complaints procedures are an important avenue to pursue strategic objectives, in addition to supporting victims in individual cases. States, on the other hand, may find themselves having to defend allegations of specific or systemic violations. Ideally, complaints procedures act as a mirror that provides an opportunity for states to bring their practices into conformity with the respective treaty. In practice, however, states often view unfavourable decisions as unwarranted criticism, which may create difficulties at the implementation stage. The treaty bodies themselves are in theory neutral arbiters that apply the treaty provisions and rules of procedures. However, inevitably, their position as bodies created by states, and relying on states’ cooperation on the one hand and seeking the effective protection of human rights on the other, raises a host of challenges in actual practice.

This chapter complements Chapter 10 of Government Accountability: Australian Administrative Law, third edition. The supervisory role of the courts is powerful and constitutionally entrenched. However, any system that enables one arm of government to supervise the actions of another requires a certain level of restraint to balance the separate powers appropriately. The exclusions built into the statutory judicial review schemes and the focus in common law and constitutional judicial review cases upon jurisdictional error impose limitations on the scope of judicial review. This chapter considers further limits on judicial review, specifically justiciability, standing, and attempts by parliament to impose statutory limits.

This chapter complements Chapter 10 of Government Accountability: Australian Administrative Law, third edition. The supervisory role of the courts is powerful and constitutionally entrenched. However, any system that enables one arm of government to supervise the actions of another requires a certain level of restraint to balance the separate powers appropriately. The exclusions built into the statutory judicial review schemes and the focus in common law and constitutional judicial review cases upon jurisdictional error impose limitations on the scope of judicial review. This chapter considers further limits on judicial review, specifically justiciability, standing, and attempts by parliament to impose statutory limits.

This chapter discusses how customary international law enters the sphere of EU law and to what extent it determines the relationship between the EU institutions, its member states and individual persons. Against this background, it is examined how customary international law is integrated into the EU legal order, what status it enjoys within that legal order, how it can be applied by EU institutions and whether it can serve as a benchmark for judicial review. Assuming that EU law is an autonomous domestic legal system, these questions are discussed from the perspective of EU constitutional law. Here it is argued that the Court of Justice of the European Union, in evaluating these issues, focusses too much on the idea of the autonomy of EU law. In order to provide provisions of customary international law with practical effect the validity of EU law must also be able to be reviewed on the basis of international law standards.

This chapter present my own theory of judicial review, which I call a ‘common law ultra vires theory'. Based around the logic of ‘acting beyond one's powers', judicial review follows the narrow and broad limb. Although statutory provisions will be relevant and even dispositive where they exist, both of these limbs have roots in the common law supervisory jurisdiction of the judicial office to interpret and enforce the rules of competence and rules of conduct that empower and constrain executive officials. This theory of judicial review applies naturally and without distortion to statutory and non-statutory executive powers alike, and, within the latter category, no further distinctions need to be made between those powers associated with the Royal Prerogative and those that follow as a logical consequence of the Crown being a corporation with legal personality – or indeed any other basis of executive vires. Looking at recent UK Supreme Court jurisprudence for indirect but significant support, I argue that ‘justiciability'and ‘deference’ have a more limited role to play in the theory and practice of judicial review than first appears – even in the context of the ‘high’ prerogatives.

Judicial review is central to the Constitution-in-practice, and in the American system of vertical precedent this necessarily gives the Supreme Court, because it is the final voice in the primary American process of articulating constitutional law, the most important role in solving constitutional problems. It does not follow, however, that all constitutional questions are to be answered by the Supreme Court or that all constitutional answers are the ones that a majority of the justices think are correct in the abstract. The practice of constitutional law involves a web of principles, doctrines, and practices that make the perspective from which one is addressing a question a significant factor, much of the time, in the reasoning the constitutional lawyer should employ.

This chapter presents the significant influence that British administrative law had on Israeli administrative law – starting with the law of Mandatory Palestine, and then dealing with the gradual process of independence which has developed since the modern State of Israel was founded in 1948. The influence of British administrative law has been one of the most enduring legacies of British Mandatory rule in Palestine. At the same time, the Israeli Supreme Court has allowed itself a significant degree of independence in developing on these traditional principles. This process of independent development has intensified since the 1980s, and even more so following developments in the area of constitutional law since the 1990s.

This Chapter introduces the concept of deference and illustrates how it functions in international adjudication. Section A links the concept of ‘deference’ to that of ‘authority’. It explains that ‘authority’ refers to an actor’s ability to induce deference from another actor. Linking deference to authority provides a conceptual framework to expand the analysis of possible reasons for deference, and further explains why different adjudicators may structure deference more or less categorically. The Chapter introduces the concept of ‘second-order reasons’, and examines four accounts of authority based upon differing second-order reasons. It uses this analysis to explore why international adjudicators might defer to domestic decision making authority. Section B examines how theories of authority impact the ‘degrees’ of deference. Some theoretical accounts conceptualise authority as conclusive or suspensive, and thus their application in adjudicative reasoning might prompt categorical approaches to deference. Other approaches to conceptualising authority, by contrast, accommodate more flexible analysis. This conceptual framework informs the empirical evaluation in Part II.

Deference may operate akin to an order, such that the second-order reasons for recognising a State’s authority shut off the adjudicator’s own exercise of decision-making authority. This is Raz’s understanding of the impact of recognising another actor’s authority; the recognition of authority creates in effect a duty to follow the authority’s decision. Two modes of deference reflect this understanding of authority. In a ‘deference as submission’ mode, a domestic decision becomes dispositive of the outcome of an international adjudicator’s enquiry on the issue to which deference relates. This mode of deference is introduced in Section A. At the other end of the deference spectrum, a ‘deference as control’ mode also reflects this approach to authority albeit in reverse: the international adjudicator’s authority is treated as dispositive, precluding any reference to second-order reasons for deference to a domestic decision-maker’s authority. This mode of deference is introduced in Section B. Although they sit at opposite ends of the deference spectrum, both modes of deference are considered together in this Chapter because a conclusive approach to authority informs their operation.

Rather than treating second-order reasons for deference as conclusive, the adjudicator could instead treat them as suspensive. Adjudicators adopt a suspensive view of domestic authority in the modes of deferral and abstention. Adjudicators adopting this view of authority refer to second order reasons for deference to justify not engaging with certain matters for a period of time (deferral) or at all (abstention). In both modes, domestic decisions are not endorsed. The adjudicator instead declines to exercise its own decision making authority in favour of the exercise of domestic decision-making authority. This is a form of ‘passive’ judicial participation. In these modes, deference is displayed by the adjudicator refraining from exercising its decision-making authority in preference to the decision-making authority of a domestic actor. The adjudicator does by declining to determine a dispute, or a particular matter in dispute, until a domestic decision maker has had an opportunity to make a decision relevant to the case (deferral) or at all (abstention).