Volume XII, Issue I, Spring/Summer 2022
Welcome to the final issue of King’s Student Law Review for the academic year 2021/2022, our only full edition for the academic year 2021/2022.
We publish in a reopening world. The focus on Covid-19 has receded (for now, perhaps) but in its wake have come pressing global concerns. The five papers in this issue are broadly focussed on security, climate change, and inequality, three of the greatest challenges to human flourishing today, all linked to the economic well-being of individuals and nations. Our articles reflect various aspects of these concerns, and the role of law in addressing them.
We publish, too, in a world troubled by the kind of military action we hoped we would never again see. Since February Vladimir Putin has been waging war, a battle for the territory of a sovereign state carried out with tanks and foot-soldiers but accompanied by threats regarding the deployment of more globally devastating weapons should NATO respond in kind. From crippling global supply chains, driving vast refugee flows and fuelling inflation to revising global alliances forged over decades to avoid exactly this situation, the war in Ukraine has affected everyone. The media footage evokes old images from World War II, but this war seems far more present and imminent, with iPhone recordings supported by functional internet (thanks to Elon Musk’s Starlink) providing real-time updates. Whilst the physical battles are all on Ukrainian soil, the shock waves reach far beyond its borders. The impact will last for our lifetimes and beyond, with the economic hit likely to set efforts to tackle climate change and inequality back by decades. A catastrophe created by the ambitions of a man whose worldview was shaped four decades ago will be left for future generations to resolve. There must be a role for law in this, and so we must be optimistic and creative – and our authors this time are both. They examine problems through the lens of law and propose solutions.
The war (both the military battle and the related one being fought over access to currency and fuel) has illuminated the degree to which the economic and security well-being of nations are interdependent, and that the boundaries of financial markets are different in kind and place to borders on maps. In recent times there have been few real borders to investment. Russia was, till recently, as free to invest state funds in UK-listed corporates, including Telcos and energy suppliers, as the UK was to buy shares in companies listed in Moscow. In times of war the consequences of this are complicated, as individuals are sanctioned and assets seized; when Russia invaded Ukraine the consequences included the near-immediate sale of an English football club by a Russian to an American. At the time of writing the UK government is examining the stake a non-UK citizen holds in BT PLC. BT is Britain’s main connectivity provider: there was a time when the way to start a revolution was to seize the communications network, but would it not be easier to just buy it? Charles Ho Wang Mak and Sau Wai Law remind us that many States invest substantial sums of their national reserves outside their own borders through the placement of sovereign wealth funds, and that the size and power of such funds can create security implications for host nations in times of peace as well as of war. They argue that English law in this area is insufficiently protective of the national interest, and they suggest reform.
The effects of war, recession and Covid threaten to push climate change off the list of most-urgent global priorities. As we continue to live through the hottest years on record, actions on greenhouse gas emissions repeatedly fail to match intentions. For the world to power itself completely from the sun is in theory entirely possible but requires investment, infrastructure, technology, security, cooperation and real political focus on the future. The last three seem to be in particularly short supply as we fight for the present, scrabbling for oil supplies and failing to insulate our homes, with politics remaining depressingly short-termist. Joel Fun Wei Xuan examines the role of climate clubs in facilitating and driving the kind of changes that are needed to meet greenhouse gas emission targets, considering their potential role in helping countries deliver on the Paris Agreement goals, whilst reflecting on the obstacles raised by apparent conflicts with the agreement and with commitments and rules of the international trade regime. He presents an optimistic view of what could be achieved and suggests measures that could further assist with this. Eoin Jackson suggests that States adopt an inappropriately light touch regarding climate change, and that this permits corporates to substitute greenwashing for genuine change, and to treat reducing greenhouse gas emissions as optional in the face of economic challenge. The economy can therefore become an excuse not to act, or to act inadequately. He suggests that environmental interests should be treated as top-level stakeholders within a corporate governance model, and that justification for requiring this through national climate emergency declarations lies with the human rights (inequality) dimension of the climate emergency.
Inequality is the third thread of this issue. War, recession and Covid-19 have already, disproportionally impacted the most marginalised and least advantaged. Pleayo Tovaranonte and Judith Sürken address two very different aspects of the pervasive nature and far-reaching effects of inequality in our society. Both relate to how society should respond to inequality, and both remind us that inequality is driven and fed by multiple contextual and structural factors, so that genuine structural change is needed to address it. Judith Sürken focusses on gendered violence and on the nature of the debate on how to address it. She suggests that the reason why those who argue for and against prison as a solution fail to agree is that they adopt different perspectives on gendered violence. She suggests that the criminal justice system, in focussing on whether a prison sentence is a necessary response to gendered violence inevitably, therefore, assumes that it is a sufficient response, and sees prison abolition as impossible. She suggests that a broader focus on gendered violence as the problem that needs to be solved would allow greater understanding of the contexts that also need to be addressed and would therefore provide a more helpful approach. Pleayo Tovaranonte, writing on the need for and advantages of greater board diversity, considers the kind of broad approaches that might address this aspect of societal inequality. He compares progress in this regard in the UK and New Zealand, and argues that the concept of diversity in this context should include the Rainbow Community. He examines arguments for (and against) deliberate attempt to increase boardroom diversity before putting forward suggestions regarding how greater diversity can be achieved.
These are fantastic pieces of work, and we hope you will both enjoy them and think about them, and that you will consider contributing to the Journal in the future. We would like to congratulate all our authors on having their work published. The quality of submissions is always extremely high, and we are grateful to all of those who submit their work to us.
This is my final issue as Editor-in-Chief; it has been an honour. I am delighted to pass the role to Emily Ottley, in whose safe hands the next issue will rest.
Dr Mary Lowth, (retiring) Editor-in-Chief, Kings Student Law Review.
Volume XII Issue I Spring/Summer 2022
1-29: Joel Fun Wei Xuan Climate Clubs, the Paris Agreement, and the International Trade Regime: Synergies and Conflicts
Climate clubs have recently come to the fore as a policy option to overcome the deficiencies in meeting the Paris Agreement goals. This paper seeks to explore and explain the interactions between this emerging policy option and the relevant international regimes. Specifically, it will look at the interactions with the Paris Agreement and the international trade regime, and argues that climate clubs are, in principle, consistent with these regimes. However, to ensure that climate clubs would meet their purpose of carbon abatement while addressing important legal and normative concerns, care must be taken to ensure that the implementation of carbon clubs is sufficiently robust. In a similar vein, supporting structures should also be instituted in tandem with climate clubs to meet these objectives, which this paper will proffer.
This article seeks to argue in favour of the use of a climate emergency declaration to impose heightened restrictions on business activity. It will discuss how the present climate emergency framework allows businesses to exploit it in order to continue engaging in unsustainable activity. The article will then chart how a climate emergency declaration could be utilised to justify radical methods of transforming the corporate model to reflect the need for sustainability. This will involve analysing how the framework can be incorporated into existing corporate governance, before discussing how this could be advanced through the lens of human rights discourse. Potential challenges to this reconceptualisation of a climate emergency declaration will be addressed and refuted, with particular reference to the emergency framework utilised during the Covid-19 pandemic.
58-76: Charles Ho Wang Mak and Sau Wai Law Sovereign Wealth Funds and National Security- Three Purposes of Regulations and Beyond
In light of the fact that the international investments made by state investors have tremendously expanded since the 19th century, there is a heated debate concerning the regulatory issues and challenges raised by sovereign wealth funds (‘SWFs’). This paper seeks to identify the obscure purposes regulating SWFs. It provides an alternative perspective of national security through its impact of autonomy, disclosure requirement, and continuous development of International Law from the investor-state made to the host-state. It is illustrated through comparative studies of the SWF related rules of the United Kingdom, the United States and the European Union, where most of these SWFs from around the world are established. This paper hopes to raise these three questions for further research and provide a new angle to understand national security beyond the ordinary sense of physical harm but on top of its how its citizen’s property is being protected and could not be deprived. This deprivation is different in the sense that the control is taken over through the operation of contracts and treaties, which are totally legitimate but could not be regarded as an integrity channel because of the potential political influence behind, its ability to be used for political purposes and interfere investment decisions if it contradicts with government interest. Even if these are not the intention to invest through SWFs, it could impose an invisible hand that creates fear of SWFs as there is a channel for economic retaliation or other forms of support that endanger national security. We believe the international legal community should expand existing rules and regulations to protect country autonomy, the confined scope for disclosure and reduce public worries over national security through promoting financial and economic national security.
Prison abolition is commonly not even found worth debating. However, there are profound feminist criticisms of prison. While some feminists use this to call for prison abolition, feminists aiming for criminal law reforms usually do not. This is a fundamental conflict. But it is barely researched what divides them. This paper proposes that it is different understandings of gendered violence. By scrutinising furthermore how gendered violence is narrated in the example of criminal courts, this paper helps us understand why prisons are commonly deemed inevitable.
When gendered violence is perceived as individual wrongdoing against “ideal victims”, prison can seem compelling. However, structural and intersectional accounts make a debate on prison abolition necessary. In criminal courts, the narration of gendered violence is shaped by exclusion or ignorance of certain aspects, too. It is these restrictions that make prison appear helpful, not prison’s ability to address gendered violence.
103-122: Pleayo Tovaranonte Ethnic and Cultural diversity in Boards of Directors of Public Companies in the United Kingdom and New Zealand
Board diversity has been more than a buzzword in the corporate world and it has increasingly had a huge impact in the wake of the “#MeToo” and “Black Lives Matter” social movements. The advantages of ethnic and cultural diversity have been well-recognised, but the uptake has been sluggish world-wide. This article asserts the importance of board diversity, and extends the definition of “culture” to include the rainbow community. It also offers the most up-to-date analysis with the latest statistics in the United Kingdom as published in the Parker Review and explores barriers to implementation. New Zealand is chosen for comparison because it has a long history of women’s suffrage and bi-culturalism. Methods to improve the ethnic and cultural diversity in public company boards have been suggested, including the role of “soft law”, as per the Corporate Governance Code, which appears a sufficient legal mechanism to improve our diversity targets.