King’s Student Law Review

Welcome to Kings Student Law Review.

King’s Student Law Review (KSLR) is a peer-reviewed academic publication run by researchers and post-graduate students based at the Dickson Poon School of Law, King’s College London. We seek to publish the very best of legal scholarship written by students at King’s and other leading law schools. The KSLR is listed in the international database HeinOnline.

 We are pleased to publish our delayed Spring 2021 edition, Volume XI Issue II. 

We expect to issue the call for papers for Volume XII Issue I (Autumn 2021) in late September 2021.

Please refer to our submissions page for guidance on what we publish before submitting. 

 


Volume XI, Issue II 

Welcome to the second issue of King’s Student Law Review for the academic year 2020/2021. The publication has been considerably delayed as the Journal, like so much else, has been affected by the pandemic. We hope that we are going to press with greater optimism for education and academia than last time, with vaccination offering the hope that study, even international study, is now possible. However, this reopening also throws back into stark relief other pressing global challenges, in particular increasing health and economic inequality, increasing uncertainties about the future of the planet, and an increasing need to respond to populations on the move across the because of war, because of inequality and because of oppression. If we have learned anything from the last 18 months, it must be that humanity, like all living organisms on Earth, is fragile in the face of these globally-scaled events, whether they are mediated through disease or through other human factors, and that we need to cooperate to survive. All the articles in this edition are in some way pertinent to these issues. In all of these issues a role is being played, and needs to be played, by law.

Our publication this time has five articles. The first two were published as advance articles in May 2021, focussed on mandatory Covid-19 vaccination. Emily Ottley wrote on the potential compliance of mandatory vaccination policies with the State’s human rights obligations, asking whether mandatory Covid-19 vaccination for adults in England and Wales might be a justified interference with Article 8 of the European Convention on Human Rights. She suggests that such interference could be justified for the protection of health and the economic wellbeing of the country, supposing that the necessary legislation were enacted, but that this would be contingent on both the way in which the scheme was set up and the effectiveness of education/awareness campaigns. In a companion article Mary Lowth wrote an ethical consideration of mandatory Covid-19 vaccination asking when (if at all) it is morally right to compel individuals to act against their own preferences for the sake of others. She suggests that an argument for mandatory vaccination can be derived from the duty of easy rescue, but that there are limits both to the kind of decisions that can be coerced and the degree of coercion that is ethically permissible.

The last four articles are all published in September 2021, and all relate to the role of the law in addressing fairness in the face of globally-scaled challenges to equality, human rights and the planet itself.

The first concerns the need to share access to essential technologies. Akash Thomas Jose and Rida Ameen consider the issue of fair and equal access to licenses for standard essential patents, suggesting that the law has given insufficient attention to the requirement that access should be given on ‘fair, reasonable and non-discriminatory’ (FRAND). terms. They suggest that the ‘non-discrimination’ element of this obligation plays a vital antitrust role, but this has been hampered by the lack of clarity of what ‘non-discrimination’ means, and a failure of courts in the EU and the UK to specifically consider the interpretation of ‘non-discrimination’ from an antitrust point of view.

The second article concerns the response of states to the movement of populations. As the peoples of economically challenged, war-torn and oppressive States increasingly travel by irregular means to seek a better, safer home, Mitchell Hill writes on the pressing topic of refugee refoulement. He argues that refoulement principles are a peremptory legal norm now understood as aimed at protecting refugees from the rights violations which forced them to flee, but suggests that non-refoulement is failing. He explores the reasons for this, including manipulation of concepts like ‘safe State’ and ‘safe third country’,  bilateral agreements limiting where refugees may seek asylum, push-back policies, non-binding Diplomatic Assurances which potentially undermine refoulement principles, and vagueness in concepts of permissible derogations which allow States leeway to determine them as they wish. He suggests that this is no longer aligned with the original intentions of the drafters of the 1951 Refugee Convention, and that we can no longer say that non-refoulement is the cornerstone of refugee protection.

The third article concerns Covid-19. Prateek Joinwal considers the impact of Covid-19 on human rights at a global level, as states try to balance the individual rights of citizens against the legitimate public interest in population health. He notes that at the time of writing over 94 countries had passed emergency declarations in the face of Covid-19, 46 of which affected the right to freedom of expression, and 128 of which affected the right to freedom of assembly. He finds that States wishing to circumscribe their liabilities under the multilateral human rights treaties may either rely on their ability with the Convention to limit the application of international convention(s) or may derogate from them altogether, but that it is often unclear which approach has been taken. He suggests that there is a pressing need for international oversight by human rights bodies, which in turn requires states to notify derogations in accordance with procedural guidelines. Not doing so risks allowing authoritarian regimes to unjustly breach their human rights obligations under the cloak of an emergency that has been illegally proclaimed.

In the fourth article Osama Shaaban focusses on accountability for online hate speech.  Prior to the Online Harms White Paper and the subsequent Draft Online Safety Bill, victims of social media hate had to resort to civil claims against perpetrators or claims against the social media companies through the E-commerce Directive, both of which had a narrow application and were not helpful to the victims. Civil claims often result in expensive litigation and do not adhere to the needs of the victims; particularly that the social media post(s) be taken down promptly. He analyses the UK’s new regulatory regime, which assigns Ofcom with the responsibility of imposing obligations and issuing penalties on social media companies in cases of non-compliance with the codes of conduct. He suggests both that defined terms in the White Paper and the Online Safety bill would benefit from greater precision and that liability through contract law could and should be placed on social media companies.

We would like to congratulate all our authors on having their work published. The quality of submissions is always very high, but the topicality of these articles made them  stand out. We hope you enjoy Volume XI, issue II.

Dr Mary Lowth, Editor-in-Chief, Kings Student Law Review.

 

Table of Contents:

1-25: Emily Ottley: Mandatory Covid-19 Vaccinations for adults in England & Wales: a justified interference with Article 8 of the European Convention on Human Rights?

In light of the Covid-19 pandemic and the Grand Chamber’s recent decision in Vavřička and others v the Czech Republic, it is time to re-examine the contentious issue of mandatory vaccinations. This raises a number of difficult political, ethical, and legal issues. However, the focus of this paper is on compliance with human rights obligations. More specifically, it asks whether mandatory Covid-19 vaccinations for adults in England and Wales would be a justified interference with Article 8 of the European Convention on Human Rights. The question of mandating vaccines for adults has so far been under analysed in the case law and legal literature. The conclusion reached here is that the interference could be justified for the protection of health and the economic wellbeing of the country. This supposes that the necessary legislation will be passed by Parliament. It is also contingent on both the way in which the scheme is set up and the ineffectiveness of education/awareness campaigns.

26-48: Mary Lowth: Can mandatory vaccination be ethically justified? A deontological perspective

The moral duty to choose to be vaccinated is a duty to exercise autonomy unselfishly, taking proper account of the duty of rescue. This does not imply a community ‘right’ to coerce such duties, since only selfish choices can justifiably be coerced, since these reject the moral duty of easy rescue. Since the ease of choosing to rescue is subjectively determined, for those with extreme aversion vaccination may be too difficult to be required by the duty. Even for those who do choose selfishly the permissible degree of coercion of selfish choices will necessarily be limited to those that do not impair the voluntariness of consent since, irrespective of law, medical ethics do not permit invasion of the bodies of patients without consent. The permissible level of coercion therefore cannot exceed that which permits an ‘all things considered’ decision made for normatively reasonable reasons, as opposed to a choice between evils.

49-73: Akash Thomas Jose, Rida Ameen: Non-Discrimination Obligations in FRAND Disputes: A Need to Reconsider based on Antitrust Concerns

Licenses for standard essential patents must be given on ‘fair, reasonable and non-discriminatory’ (FRAND) terms to ensure that every licensee gains access to standardised technology without being treated unfairly. However, their compliance depends on the scope of each obligation which has not been defined accurately. In particular, the ‘non-discrimination’ obligation has been overlooked, although it is vital to restrict patentees’ monopoly power. This article highlights the lacuna existing in the European Union (EU) and the United Kingdom (UK) regarding the interpretation of this obligation and the courts’ failure to interpret the ‘non-discriminatory’ aspect of FRAND obligations from the antitrust perspective. It further analyses the effects of price and non-price-based discrimination on competition in the market resulting in economic inefficiencies. The article recommends certain guiding factors to be considered by the courts if discrimination between licensees is allowed. It further suggests a model agreement to fulfil the ‘non-discriminatory’ obligation from the antitrust lens.

74-95: Mitchell Hill: The Cornerstone No Longer? The Growing International Problem Of Refugee Refoulement

Non-refoulement prevents States from expelling or returning a refugee to any location where they may face any form of discriminate persecution. This internationally-renowned rule is often referred to as the cornerstone of refugee protection. Despite this, States can be seen adopting a variety of measures which both explicitly and implicitly undermine (or in some instances, wholly violate) the operation of this rule. This situation has become visibly worsened as a result of the COVID-19 pandemic. With this in mind, this paper seeks to determine the extent to which non-refoulement truly remains the cornerstone of refugee protection.

Fundamentally, this paper aims to contribute to ongoing discourse within the field of public international law, more particularly international refugee law. Thus, it aims to bring together both the theoretical and factual scene underpinning the non-refoulement principle, assessing this in light of measures arising both before and after the emergence of COVID-19.

96-119: Prateek Joinwal: Enforcing Multilateral Treaties in a Public Emergency: A Note on Limitations and Derogations to The International Human Rights Framework

The outbreak of the novel coronavirus and its impact on the enforcement of human rights have been subjected to a lot of deliberation in the past few months. States around the world have been looking for measures to balance the conflicting interests of guaranteeing citizens their individual rights with that of protecting the health of the general population, most notably by restricting their liability under international law for the breach of the former rights. This endeavour has inevitably revived the debate on the contours of the right of the State(s) to either limit the application of international convention(s) or to derogate from them altogether. In an attempt to test the murky waters surrounding these two inter-related concepts, this paper aims to discuss the avenues available for member States to circumscribe their liabilities under the multilateral treaty regime, with a special focus on the framework of human rights treaties.

120-138: Osama Shabaan: To what extent is the new regulatory regime proposed by the Online Harms White Paper effective in increasing accountability on Social Media Companies for online hate speech?

The appointment of Ofcom as the regulator for online harms raises a plethora of regulatory concerns for social media companies. Nevertheless, it remains undoubtedly clear that a core concern emanating from the new regulatory regime relates to the extent to which social media companies will be held to higher standards of accountability. Through evaluating the legal mechanisms entitling online hate speech victims to judicial redress prior to appointing Ofcom as a regulator, the paper develops a more holistic understanding of the socio-legal implications that arise following Ofcom’s appointment and whether this will sufficiently shield victims from hateful content. Upon establishing the contours of the new regulatory regime, the paper evaluates the excessively wide and nebulous duty of care proposed through the White Paper and recommends a more narrowly delineated duty in context with contractual mechanisms.