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Cambridge Journal of International and Comparative Law Cambridge Journal of International and Comparative Law Publication Copyright and open-access policy The Cambridge Journal of International The CJICL is an open-access publication gov- and Comparative Law is an open- erned by our publishing and licensing agree- access publication available online at ment. Any commercial use and any form of <http://www.cjicl.org.uk>. Each volume con- republication of material not covered by the sists of two or more general issues and a spe- cial issue examining the jurisprudence of the applicable license is subject to the express per- UK Supreme Court. mission of the Editors-in-Chief. Editorial Policy Contact information All submissions are subject to a double-blind Cambridge Journal of International and Com- peer-review editorial process by our Aca- parative Law demic Review Board and/or our Editorial Faculty of Law, 10 West Road Team. Cambridge, CB3 9DZ Submissions United Kingdom The journal accepts the following types of manuscript: E-mail: [email protected] (i) Long Articles between 6,000 and 12,000 Web: http://www.cjicl.org.uk words but not exceeding 12,000 words in- cluding footnotes; Typeset in Crimson and Gentium Book Basic, (ii) Short Articles not exceeding 5,000 words distributed under the terms of the SIL Open Font including footnotes; (iii) Case Notes not exceeding 3,000 words License, available at <http://scripts.sil.org/OFL>. including footnotes; and (iv) Book Reviews not exceeding 2,500 words including footnotes. Please visit our website for submission details. ISSN 2050-1706 (Print) ISSN 2050-1714 (Online) © 2014 Cambridge Journal of International and Comparative Law and Contributors This issue should be cited as (2014) 3(4) CJICL http://www.cjicl.org.uk i ii Editorial Board 2013--14 Editors-in-Chief Daniel Clarry CameronMiles ValentinJeutner Managing Editors of the UK Supreme Court Annual Review ChristopherSargeant EstelleWolfers Managing Editors JasonGrantAllen EmmaBickerstaffe NaomiHart AnaJúliaMaurício StephanieMullen ClaraRauchegger SidneyRichards JosephSampson Matthew Windsor Secretary Treasurer SarahHack YinHarnLee Editors AnjaliAnchayil NikitaAppaswami AngelikaBialowas MiriamBoxberg ChristineBarthelemy ChintanChandrachud TheaChesterfield MoonChoi RonaldCriscuolo MatthewDavie Mariano De Albo Uribe Anshu De Silva Wijeyeratne ZsófiaDeli CalumDocherty AkanshaDubey MaximillianEvans StephanieForte CatherineGascoigne Sondre Torp Helmersen Bruno Gelinas-Faucher AnnaGrunseit SeungPyoHong GodsgloryIfezue JessieIngle DafniLima SoteriosLoizou EmilijaMarcinkeviciute VedikaMittal AntonMoiseienko LilitNagapetyan EdwardBéchard-Torres PierrePêcheux AlexanderPsaltis DavidPusztai KavanaRamaswamy NiccolòRidi AliceRuzza JessicaStaples MatthewKennedy YawenYang Joshua Zell iii Academic Review Board Honorary Member and Senior Treasurer PROFESSOR JAMES CRAWFORD AC SC LLD Members DR GEERT DE BAERE MS PENELOPE NEVILL DR FREYA BAETENS DR SARAH NOUWEN DR JOHN BARKER DR ROGER O’KEEFE PROFESSOR CATHERINE BARNARD DR ALEX OUDE ELFERINK DR LORAND BARTELS DR TIINA PAJUSTE PROFESSOR JOHN BELL QC DR KATE PARLETT DR EIRIK BJORGE DR SURABHI RANGANATHAN MS MARIE-CLAIRE CORDONIER DR PIPPA ROGERSON SEGGER DR SOLÈNE ROWAN DR ANTHONY CULLEN MS EVGENIYA RUBININA DR DOMINIC DE COGAN PROFESSOR PHILIPPE SANDS QC PROFESSOR ZACHARY DOUGLAS MR ANDREW SANGER DR MATTHEW DYSON MR DANIEL SAXON PROFESSOR CHARLES GARRAWAY DR JILLAINE SEYMOUR DR MARKUS GEHRING PROFESSOR MALCOLM SHAW QC DR JOANNA GOMULA-CRAWFORD MR BART SMIT DUIJZENTKUNST DR TOM GRANT PROFESSOR JOHN SPENCER QC LLD PROFESSOR CHRISTINE GRAY MR CHRISTOPHER THOMAS DR DOUGLAS GUILFOYLE DR KIMBERLEY TRAPP DR PETER HARRIS DR SOPHIE TURENNE DR GLEIDER I HERNÁNDEZ DR ISABELLE VAN DAMME DR JESSIE HOHMANN PROFESSOR GUGLIELMO VERDIRAME DR DANIEL JOYCE DR SANTIAGO VILLALPANDO MS JODIE KIRSHNER DR MICHAEL WAIBEL DR FRANCESCO MESSINEO PROFESSOR MARC WELLER DR MARKO MILANOVIC DR RALPH WILDE DR ALEX MILLS PROFESSOR SARAH WORTHINGTON QC MS JASMINE MOUSSA MS RUMIANA YOTOVA DR EVA NANOPOULOS DR SHENG ZHANG PROFESSOR LORNE NEUDORF iv Volume 3 CJICL [2014] Issue 4 Table of Contents Editorial 983 Daniel Clarry, Valentin Jeutner and Cameron Miles I. General Part International Investment Law and Universality: Histories of 986 Shape-Shifting Kate Miles Baby Steps away from the State: Comparing Postnational 1011 Order in South America and Europe through Analysis of Regional Judicial Dialogue and Community Tom Gerard Daly Harmonisation of International Human Rights Law Through 1037 Judicial Dialogue: the Indigenous Rights Paradigm Maria Papaioannou Constitutional Law and the Ius Gentium 1060 Seshauna Wheatle The Right to Challenge Witnesses—an Application of 1084 Strasbourg‘s Flexible “Sole And Decisive” Rule to Other Human Rights Jurisdictions Elmar Widder II. Symposium: Transitional Constitutionalism What is Transitional Constitutionalism and How Should We 1098 Study It? Jason Allen A. Constitutional Notes Transitional Constitutionalism in the United Kingdom 1113 Iain McLean and Scot Peterson v Transitional Justice within the Framework of a Permanent 1136 Constitution: The Case Study of the Legal Framework for Peace in Colombia Carlos Bernal-Pulido From constitutional words to Statehood? The Palestinian story 1164 Sylvie Delacroix Rethinking Recognition: The Case of Iraqi Kurdistan 1182 Renad Mansour The Provisional Constitution of the Federal Republic of 1195 Somalia: Process, Architecture, and Perspectives Antonios Kouroutakis Iceland: The Birth of the World’s First Crowd-sourced 1207 Constitution Katrín Oddsdottír B. Long Articles Constituent Power and the Limits of Adjudication: Kosovo 1221 and Quebec Matthew Kennedy Will Surviving Constitutionalism in Morocco and Jordan 1240 Work in the Long Run? A Comparison with Three Past Authoritarian Regimes Francesco Biagi Mapping the Constitutional Process 1260 Lorianne Updike Toler A Universal Approach to International Law in Domestic 1287 Constitutions: Does it Exist? Giulio Bartolini Balancing Islamic law, Customary Law and Human Rights in 1321 Islamic Constitutionalism through the Prism of Legal Pluralism Anicée van Engeland vi III: Book Reviews Fresh Water in International Law by Lawrence Boisson de 1349 Chazourne Jasmine Moussa The Origins of International Investment Law by Kate Miles 1355 Cameron Miles IV: Case Notes Fewer Complaints, More Satisfaction: Cyprus v Turkey 1361 Frederike Kollmann and Jan Martin Hoffmann A Comment on the Public Morals Exception in International 1376 Trade Law and EC – Seals: Moral Imperialism and Other Concerns Elisabeth Whitsett vii DOI: 10.7574/cjicl.03.04.292 Cambridge Journal of International and Comparative Law (3)4: 983–985 (2014) EDITORIAL Daniel Clarry* Valentin Jeutner† Cameron Miles‡ This is the final issue of volume 3 of the Cambridge Journal of International and Comparative Law. At the outset, we wish to acknowledge the efforts of the large number of people involved in its publication. This includes the Journal's Managing Editors Jason Allen, Stephanie Mullen, Ana Júlia Maurício, Clara Rauchegger, Joseph Sampson and Matthew Windsor, as well as the individual Editors who contributed their time and effort. It further includes, prominently, Sidney Richards, without whose continued publication and layout expertise this issue could not have been realised. We also wish to thank the members of the Academic Review Board for their ongoing support. Lastly, special thanks are owed to Professor James Crawford AC SC, who has now stood down as the Journal's Senior Treasurer having served in that capacity since its inception. The Journal wishes him all the best for his tenure as a judge of the International Court of Justice at The Hague. This issue is the second of the regular issues of the Journal for 2014. It proceeds in four parts. The first is a collection of general pieces dealing with aspects of international and comparative law. In the first place, Kate Miles engages in a in-depth discussion of the history of international investment law, uncovering its origins in the mercantile environment of the 16th century and the advent of the state-supported trading company. Miles draws on the research she conducted during the preparation of her book, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital, published in 2013 by Cambridge University Press and launched at the CJICL Annual Conference in May 2014. Miles is followed by three articles that emerged from papers also given at that Conference. Tom Gerald Daly examines the topic of regional integration between Europe and Latin America in the context of human rights and wider judicial dialogue, identifying a distinct Latin * PhD candidate, Gonville and Caius College, University of Cambridge. † PhD candidate, Gonville and Caius College, University of Cambridge. ‡ PhD candidate, Trinity Hall, University of Cambridge. Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 984 Daniel Clarry, Valentin Jeutner and Cameron Miles American conceptualisation of these fields that goes beyond post-national order in the European mold. Maria Papaioannou tackles similar themes, examining human rights and judicial dialogue within the paradigm of indigenous rights, urging the development of common standards within regional systems through cross-jurisdictional interaction. Seshauna Wheatle considers the provocative topic of comparative law and the jus gentium, examining the transnational passage of constitutional principles to fill legal vacuums in different
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