VOLUME XIII ISSUE I (February 2023)
Leigha Crout (2023) Against Constitutionalism: A Review. The King’s Student Law Review, Vol XIII, Issue I, pp1-7
Book review: Crout reviews Marin Loughlin’s ‘Against Constitutionalism’ (Harvard University Press 2022).
Alexis Loh and Gregory Chan (2023) Is Justice Blind to Compassion? A Modern Defence of Schopenhauer in Legal Reasoning. The King’s Student Law Review, Vol XIII, Issue I, pp8-28
“Just”, “impartial”, “fair”, “unbiased” – these words are often used to describe the “ideal” judiciary, one which interprets and enforces the law without feeling. Indeed, traditional motifs of Lady Justice portray her blindfolded, wilfully ignorant of individuals’ circumstances. Yet, what is often overlooked is that Lady Justice is fundamentally human. In that regard, this notion of humanity – especially in terms of the human propensity for compassion – seems to be oversimplified or ignored within the judiciary, and largely taken for granted despite its significant roles in deciding cases. On that note, we reflect on the works of Arthur Schopenhauer and his writings on the “Will”, the “Representation” and “Compassion”. In doing so, we present a modern defence of Schopenhauer’s works against the backdrop of legal reasoning and judicial decision-making and argue that the subjective Will of the judiciary cannot be removed from the objective decisions they make. We then propose that Compassion should be the core driving force behind one’s Will to dispense appropriate justice. This would allow for a more nuanced, and more humane judiciary.
Paul Abraham (2023) Admissibility of Illegally Obtained Evidence in International Arbitration: A Conduct Based Analysis. The King’s Student Law Review, Vol XIII, Issue I, pp29-47
This article deals with the admissibility of illegally obtained evidence in arbitration. Though there exist vast jurisprudence on the concept of illegally obtained evidence in the domestic arena, there is very little arbitral jurisprudence that deals with the question of how international arbitral tribunals must treat illegally obtained evidence. Given that arbitral tribunals are granted wide discretion to decide on the admissibility of evidence, and in light of the absence of accurate guidelines in the arbitral rules, it becomes essential to determine the extent to which the arbitral tribunal could admit illegally obtained evidence, and the criteria to be used by arbitral tribunal while determining such admissibility. This paper attempts to determine and analyse the framework that must be used by international tribunals while deciding on the admissibility of illegally obtained evidence in international arbitration. It explores the approaches of the various international arbitral tribunals in order to understand the important factors that could influence the admissibility of illegally obtained evidence and posits that the conduct of the party in obtaining the illegal evidence could be the most crucial factor, while developing a framework. Though there has been a view that the conduct of the party to the arbitration proceedings should not be a guiding factor for the admissibility of illegally obtained evidence, the fact that every tribunal has refused to admit illegally obtained evidence based on the conduct of the party to the arbitration proves to be one major reason why conduct should be a yardstick. Based on the premise that the conduct of the party in obtaining the illegal evidence is the key factor in determining admissibility, the author finally lays down a framework for determining the admissibility of illegally obtained evidence in international arbitration.
Antonia Karamanli (2023) Climate Change and the Law of. the Sea: Standing the Test of Time. The King’s Student Law Review, Vol XIII, Issue I, pp48-65
This article discusses the inadequacy of The United Nations Convention on the Law of the Sea (UNCLOS) in addressing issues arising from climate change. Although adopting a broad interpretation of UNCLOS articles could be an effective measure temporarily, this article argues that wider interpretation may seem difficult to follow given the complexity of climate change. Considering the rise in sea levels and fragile marine biodiversity, it is evident that universal and clear rules are needed, as the complexity that would arise from broad interpretation of UNCLOS works against the international community. The article concludes that amendments are required in order to make the current regime effective. An example of this is the amendment of the law concerning the submerged islands that could lose their statehood and the right to an Exclusive Economic Zone (EEZ) or continental shelf as a result of the rise in sea levels. Moreover, amendments are needed in order for UNCLOS to facilitate the Marine Protected Areas (MPAs), a significant measure for conservation of marine biodiversity that is currently incompatible with UNCLOS. Alternatively, the article suggests the development of new standards and rules within a unified framework where the emerging threats that arise from climate change are in the centre of the regime.
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.
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.
30-57: Eoin Jackson Climate Emergency Declarations and the Transition to a Sustainable Corporate Model – Justifying Emergency Measures to Create a Green Business Framework
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.
77-102: Judith Sürken How Gender-Based Violence Makes Prison Abolition (Un)thinkable: The Role of Narrations and Their Setting
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.
VOLUME XI ISSUE II (September 2021)
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 Covid-19 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.
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.
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.
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.
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.
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.
VOLUME XI ISSUE I (2020)
Welcome to the first issue of King’s Student Law Review for the academic year 2020/2021. Covid-19 has not prevented the submission of a broad range of excellent papers, and we hope that those we have selected for publication will attract a broad range of readership.
We publish in strange and interesting times. A pandemic that only epidemiologists and small, ignored, government departments had imagined 12 months ago, has changed the world. The UK’s longest-serving Supreme Court justice, Lord Kerr, today called it a ‘dystopian nightmare.’ In this dystopian nightmare the clarity of thinking and objectivity of positioning of the law has never been more important. Even in the UK, usually considered one of the world’s more open democracies, the government has sought to position the Supreme Court’s intervention regarding the exercise of powers as unjustified interference (R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41.) It has recently created a ‘panel of experts’ to examine how judicial review challenges are dealt with by the courts, saying it wants to balance the right of citizens to question government policy in court against the executive’s ability to govern effectively. Lord Kerr reminded us, ‘if we are operating a healthy democracy, what the judiciary provides is a vouching or checking mechanism for the validity [of] laws that Parliament has enacted or the appropriate international treaties to which we have subscribed … The last thing we want is for government to have access to unbridled power.’
There are five articles in this edition of the Journal. Lord Kerr’s interview today is pertinent to two of them. In May 2020 he delivered the unanimous ruling of the Supreme Court, overturning the legality of interning Gerry Adams, the former Sinn Féin leader, nearly 50 years ago (R v Adams (Appellant) (Northern Ireland) [2020] UKSC 19). The judgement was highly controversial, with Lord Sumption, who served on the Supreme Court until 2018, critical of its reasoning and its predicted consequences. Jack Bickerton addresses this controversial area when he discusses the tension between human rights legislation and the use of preventive detention as a counterterrorism mechanism. He suggests that this approach is suggestive of a war model of legislation rather than of a criminal model. He argues that this leads to interference with individual rights to liberty, fair trial, and due process, and asks when, if ever, this approach can meet the tests of reasonableness and proportionality which could justify such interference.
When asked (by The Guardian) to choose which had been his most important case, Lord Kerr opted for the 2018 legal challenge brought by the Northern Ireland Human Rights Commission (In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion) (Northern Ireland) [2018] UKSC 27), which ultimately led to reform of Northern Ireland’s abortion laws. Emily Ottley reflects on the continued criminalisation of abortion in England and Wales, suggesting that the law is long overdue for reform. She argues for abortion on request in early pregnancy, that request being made in the context of the patient-centred, ‘best interests’ approach of medical ethics rather than in the context of the criminal law, by considering both the incompatibility of the current law with human rights obligations and the modern prioritisation of respect for autonomy in both medical ethics and law.
As we go to press further stories are emerging from Xinjiang regarding the brutal suppression of the Uyghur people, whilst in Cox’s Bazar, Bangladesh, over a million Rohingya wait to see whether the International Criminal Court can address the wrongs they have experienced. Malwina Wojcik’s discussion of a European Court case considering Holocaust denial is as pertinent today as it ever was. It should challenge us all to consider the role of law in the understanding of and reflection on history, and on how we understand and value truth. Her article analyses the judgment of the European Court of Human Rights in Perinçek v Switzerland, which considered whether criminalising denial of the Armenian genocide conflicted with the right to free speech enshrined in Article 10 of the Convention. She examines the judgement in the light of the key arguments for distinct legal treatment of Holocaust denial, suggesting that in affirming different legal treatment of Holocaust denial and denial of other genocides the Strasbourg Court has created a problematic hierarchy of memories.
The rise of virtual currencies, the incomprehensibility, to most of us, of exactly what they are and what guarantee of value ‘lies beneath’ them challenges the ingenuity of the law. The systems on which governments have relied to understand and regulate the movement of money have traditionally been based on the nature of conventional currencies as issued by a monetary authority, and underpinned by something ‘real.’ Virtual currencies are not controlled or regulated through traditional means, and their value is determined by the supply and demand of their market. Ilias Ioannou writes on the law’s response to the tension between their extraordinary potential to function as a means for good, and their equally extraordinary utility for facilitating the intentions of illicit actors. After considering the regulation of virtual currencies in the European Legal Area, he suggests a more comprehensive legal response is needed, one which involves embedding Virtual Currencies into the financial system by redirecting regulation towards the uniqueness of their underlying technology.
Finally, in an article pertinent to the values of fairness, autonomy and choice and how they are balanced against the group ‘good,’ Adyasha Samal examines the Group of Companies Doctrine which prescribes a test to determine whether a non-signatory is bound by an arbitration agreement whose scope is extended to them when this is necessary (or even the only way) in order to resolve the dispute. The Doctrine addresses the (presumed) intention of the parties to arbitrate. She considers the Doctrine’s requirements – for a tight group structure, involvement of the third party in the conclusion of the contract, and common intention of all parties to bind the third party to the agreement – arguing that this focus on behaviour and written agreement functions to uphold arbitration’s core tenet of consent. These considerations of fairness and good faith when ‘deeming consent’, both general principles of contract law in many civil law jurisdictions, are pertinent to consent to many other areas of law, including the criminal law and medical law and the article stands as evidence not only of scholarship on one area, but of the fact that broad reading across many areas can cross-pollinate legal thinking, only to its benefit.
We hope you enjoy Volume XI, issue I.
Dr Mary Lowth, Editor-in-Chief, Kings Student Law Review.
Jack Bickerton discusses the legal and moral issues around the use of preventive detention as a counterterrorism mechanism. He suggests that the widespread use of preventive detention as an ‘exceptional measure’ is suggestive of a war model of legislation rather than a criminal model. He argues that this leads to interference with individual rights to liberty, fair trial, and due process, and questions the circumstances in which this approach meets the tests of reasonable and proportionality which might justify such interference
Ilias Ioannou writes on virtual currencies, and the law’s response to the tension between their ingenious potential to function as a means for good, and their equally ingenious utility to illicit actors. After considering the regulation of virtual currencies in the European Legal Area, he suggests a more comprehensive legal response, embedding Virtual Currencies into the financial system by redirecting regulation towards the uniqueness of their underlying technology.
Emily Ottley addresses the criminalisation of abortion in England and Wales, suggesting that the law is long overdue for reform in this area. She argues for abortion to be made available on request in early pregnancy, that request being made within the context of the patient-centred and best interests approach of medical ethics rather than within the context of the criminal law. She approaches this by considering both the incompatibility of the current law with human rights obligations and the modern prioritisation of respect for autonomy in both medical ethics and law.
Adyasha Samal examines the Group of Companies Doctrine which prescribes a test to determine whether a non-signatory is bound by an arbitration agreement whose scope is extended to them when this is necessary in order to resolve the dispute. The Doctrine relies for its justification on a concept of presumed consent. She argues that the Doctrine’s requirements – for a tight group structure, involvement of the third party in the conclusion of the contract, and common intention of all parties to bind the third party to the agreement – arguing that this focus on behaviour and written
agreement functions to uphold arbitration’s core tenet of consent.
Malwina Wojcik analyses the judgment of the European Court of Human Rights in Perinçek v Switzerland, which considered whether criminalising the Armenian genocide denial conflicted the right to free speech enshrined in Article 10 of the ECHR. She examines the judgement in the light of the key arguments for distinct legal treatment of Holocaust denial, and suggests that in affirming different legal treatment of Holocaust denial and denial of other genocides the Strasbourg Court has created a problematic hierarchy of memories.
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VOLUME X ISSUE II (2020)
Kristin Ebner – Transnational Criminal Law: A Tool to Further Western Interests?
Julia Launders – Hyperlinking and Copyright Infringement in the EU
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VOLUME X ISSUE I (2019)
Hanna Rzeczycka and Mitja Kovac – Autonomous self-driving vehicles – the advent of a new legal era?
Malcolm Wu – Does judicial caning in Singapore amount to torture?
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VOLUME IX ISSUE II (2019)
Blánaid ní Bhraonáin – Empowerment or Exploitation? Legal Responses to the ‘Gig Economy’
Jonas T Brown-Pedersen – The ‘Human Factor’: The Role of Interpretative Technique in the Evolution of Constitutional Due Process
Seán Finan – Analysing Ireland’s Proposed Regulation of Mitochondrial Replacement Techniques
Reem Kabour – Revisiting the Inhibited Doctrine of Piercing the Corporate Veil in English Company Law
Martha Routen – Examining the ‘Backlash’ against the European Court of Human Rights in the United Kingdom
VOLUME IX ISSUE I (2018)
Maya Dabrowski – The End of LIBOR in 2022: What Next? An Analysis of LIBOR as a Major Interest Rate Benchmark, its Weaknesses and Potential Alternatives
Jake Jacobs – Defalcations, Swindles, and Fraud: Ungentlemanly Capitalism in Victorian Babylon, 1800 – 1899 Examining the Need for Revision of Cain and Hopkins’ Model of Gentlemanly Capitalism
William De Catelle – European Union Directive 2014/95 on Non-Financial Reporting: A Successful Experimentalist Governance Architecture?
Mattia Pinto – The Denationalisation of Foreign Fighters: How European States Expel Unwanted Citizens
Justin Su-Wan Yang – ‘Courts in Conflict’ by Nicola Palmer
VOLUME VIII ISSUE II (2017)
Alexander Heeps – Diplomatic Protection and Human Rights: Quo Vadis?
Justin Su-Wan Yang – The Shifting Tide (Once Again) of Shari’a Law in Northern Nigeria
Dr. Ronnie R. F. Yearwood – Ideas for a New Politics in Barbados: Governance and Truth
Giuseppe Lisella – The “Short Blanket” Of Civil Justice: A Comparative Analysis of Summary Judgments
Alfred Yang, Eric Hong – Should the Doctrine of Adverse Possession be Abolished in Hong Kong?
VOLUME VIII ISSUE I (2017)
Sicheng Zhu – Performance Interest and Unconscionability in Affirmation Cases
Jake Lewis – Achieving Relational Justice for Doctor and Patient
VOLUME VII ISSUE II (2016)
Beatriz Lie – Legal Mechanisms of Economic Integration in Latin America: The Bolivarian Alternative
Miko Leach – Deprived from Right to Food
VOLUME VII ISSUE I (2016)
Tanvi Mani – The Applicability of the Norms of Emergency Rescue of Astronauts to Space Tourists
Alex Catalán Flores – Reconceiving ‘Burden-Sharing’ in International Refugee Law
Jonathan Lee – Reforming Parasitic Accessory Liability in English Law
VOLUME VI, ISSUE I (2015) – Spring Issue
VOLUME V, ISSUE II – Winter 2014
The Rights Gap: How the law of abortion in England and Wales has deprived women and foetuses of their inalienable human rights, pp. 1-15
Elisabeth Attwood
Defining Tax Avoidance, pp. 16-32
Dennis Dixon
Dworkin’s Argument on Abortion, pp. 33-51
Dorota Galeza
Property Law: The Unsung Hero of North Sea Oil and Gas, pp. 52-66
Demetris Hadjiosif and Constantinos Yiallourides
Three Steps Forward, Three Steps Back: Why the Supreme Court decision in Prest v Petrodel Resources Ltd leads us nowhere, pp. 67-82
Adam Liew
Science, Expertise and Due Deference, pp. 83-98
Ciju Puthuppally
VOLUME V, ISSUE 1 – Spring 2014
Asylum for Refusing to Fight: Charting the Development Towards the Right to Conscientious Objection, pp. 1-15
Amy F. W. Corcoran
Ownership as Authority, pp. 16-29
Dan Fuller
Freedom of Speech: A Pernicious Shroud for Homophobia, pp. 30-42
Conor McCormick
Do Children Require Special Protection Under International Human Rights Law?, pp. 43-57
Fiona Orr
Maximising Utility: Applying Utilitarian Theory to International Patent Law, pp. 58-77
Emma Perot
Recognition of the English Solvent Schemes of Arrangement in Germany, pp. 78-91
Arthur Swierczok
VOLUME IV, ISSUE 2 – 2013 (Download)
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An evaluation of reforms to auditor liability: a necessity or a step toofar? by Aureilia Jayne Storey, University of Birmingham
- Are International Human Rights selfish?
by Ervis Haziri, Queen Mary, University of London
- The UK and its ‘good tax system’: an analysis based on evolving criteria
by Ligali Ajibola Ayorinde, Queen Mary, University of London
- The future of Maltese tax litigation after John Geranzi Ltd. v Commissioner of Inland Revenue
by Nicola Jaccarini, University of Malta
- Absence of Precedent in Investment Arbitration: A Missed Opportunity to Clarify Standards of Protection
by Devrim Deniz Celik, University College London
- Development of Corporate Ownership and Control in China
by Min Yan, King’s College London
- House of Lords Reform: Where now?
by Scott Wallace, Girton College, University of Cambridge
- Negotiation and Mediation: Promoting a Culture of Injustice?
by Charitha Shashiraj, NALSAR University of Law, India
- Case Comment: Balancing Freedom of Religion in the Workplace, Eweida and Others v the United Kingdom (Application numbers 48420/10, 59842/10, 51671/10 and 36516/10)
by Natalie Pratt, University of Oxford
- Searching, Suggesting and Speaking: Does a Company Have Recourse for Defamation on Google?
by Donal Scott, London School of Economics and Political Science
VOLUME IV, ISSUE 1 – 2013 (Download)
- Two years later: revisiting the Supreme Court’s decision to eliminate expert immunity by Chintan Chandrachud, University of Oxford
- Engaging law with social reality for the legal protection of unmarried cohabiting couples by Kelly Reeve, University of Warwick
- Derivative Actions in the UK: Revised yet unimproved image about derivatives market
by Shaowei Lin, University of Edinburgh
- Religious Hate Speech Regulation: Counteracting Inequality or Counterproductive?
by John-Marjason-Stamp, University of Oxford
- The Relationship between European Union Law and International Law through the Prism of the Court of Justice’s ETS Judgment: Revisiting Kadi I
by Ana Júlia Maurício, University of Cambridge
BOOK REVIEWS
- Albert Dzur, Punishment, Participatory, Democracy, and the Jury
- Andrew Keay, The Corporate Objective
VOLUME III, ISSUE 2 – APRIL 2012 (DOWNLOAD)
- English Public Law on Children has Found a More Acceptable Balance Between the Welfare of the Child on the One Hand and the Rights of the Child’s Parents on the Other than the Private Law on Residence and Contact Disputes
by Amarit Kaur Dhaliwal
- The Horizontal Direct Effect of Directives – Time For a Change in Direction?
by Emma Morgaine Williamson
- Racially Biased Juries in the Criminal Court
by Paul Gavin
- Why Twail Must Not Fail: Origins & Applications of Third World Approaches to International Law
by Vikrant Dayanand Shetty
- Poets As Legislators: Robert Browning’s Influence on the Reform on Equity in the Victorian Era
by Morshed Mannan
- The Case for Kosovo’s Statehood and the Use of Principles of International Law
by Mustafa Latif-Aramesh
- Sadomasochism and the Criminal Law: A Human Rights Approach
by Stephen Doherty
- Morality in Laws and Victimless Crimes
by Danish X
- NAFTA Chapter 19: The Good, The Bad & The WTO
by Shivankar Sharma
- The Interpretation of the Doctrine of Piercing the Corporate Veil by the UK Courts is More Successful Than By the US Courts
by Florence Gakungi
- The Principle of Procedural Autonomy and the Principle of Effectiveness of the Judicial Protection in the Recent ECJ Case Law: The Issue of Jurisdictional Rules
by Alessandro di Mario
BOOK REVIEWS
- Francis N. Botchway (ed.), “Natural Resource Investment and Africa’s Development”
by Baskaran Balasingham
- Andrew D. Mitchell, “Legal Principles in WTO Dispute”
by Benedikte Barsett
- Renato Nazzini, “The Foundations of European Union Competition Law: The Objective and Principles of Article 102”
by Charlotte Vermeerschv
CASE NOTE
- Case Note on Sedjic And Finci v. Bosnia And Herzegovina
by Nasia Hadjigeorgiou
VOLUME III, ISSUE 1 – DECEMBER 2011 (DOWNLOAD)
- ‘Introducing a “British Bill of Rights”‘
by Emma Sau Hong Lui
- ‘Critical Analysis of the Concept of a “Reasonably Available Alternative Measure” in the Context of Article XX GATT, in the Light of the Panel and Appellate Body Rulings in Brazil-Tyres‘
by Corinna Paeffgen
- ‘Commutative Justice in Tort: Towards a “Pure” Rights-Based Theory’
by Jonathan Michael Cockfield
- ‘Can a Persuasive Case Be Made That the Monarch is an Efficient Part of the Constitution?’
by Dominic Bright
- ‘Gill v RSPCA: Law, Principle and Policy’
by Ranamit Banerjee
- ‘Behind the Walls of the Forbidden Court: How US Courts Bar Access to Foreign Claimants’
by Jacopo Crivellaro
- ‘Caribbean Court of Justice or the Judicial Committee of the Privy Council? A Discussion on the Final Appellate Court for the Commonwealth Carribean’
by Matthew Gayle
BOOK REVIEW
- ‘Tom Bingham’s “The Lives of the Law”‘
by Stefan Mandelbaum
VOLUME II, ISSUE 1 – DECEMBER 2010 (DOWNLOAD)
- ‘The EU Maintenance Regulation: A qualified success for European Family Law’
by Philip Bremner
- ‘Moral Hazard and How It Was Invoked in the Northern Rock Crisis of 2007’
by Andres Curia Miranda
- ‘Why the Criminal Law Principle of Correspondence Should Prevail Over the Pragmatism of Constructed Liability’
by Dominic JJ Bright
- ‘Selective Abortion: Selecting the right response’
by Chris Cowland
- ‘Procreative Liberty and Selecting for Disability: Section 14(4) Human Fertilisation and Embryology Act 2008’
by Edward M Taylor
- ‘It’s Just Not Cricket: EU Competition Law and its Application to Sporting Rules’
by Eoin Kealy
- ‘The Right to Life Shall Be Secured to Everyone by Law: The Extent to Which the European Court of Human Rights has Developed the Concept of Positive Obligations in Relation to Article 2’
by Louise McCamphill
VOLUME II, ISSUE 2 – APRIL 2011 (DOWNLOAD)
- ‘Live and Let Die: Bringing Physician-Assisted Suicide to the UK’
by Tariq Teja
- ‘The Power of Party: A Critical Examination of Political Party Influence in the House of Commons and the Constituency’
by James Hockin
- ‘An Evaluation of Surrogacy Law and its Potential Development in the UK: Is There a Clear Way Forward?’
by Phillip Anderson
- ‘An Analysis of the Takeover Code’s Treatment of an Acquiring Company’s Shareholders: Stealing From the Rich to Give to the Already Wealthy?’
by Tiernan Fitzgibbon
- ‘How Relevant is Carl Schmitt’s Work Today?’
by Shehram Khattak
- ‘What is at State in the Debate on International Development’
by Romit Bhandari
VOLUME I, ISSUE 1 – 2009 (DOWNLOAD)
- ‘The Armenian Genocide: International Law and the Road to Recovery’
by Neshan Minassian
- ‘The Constitutional Right to Express Hatred: A Comparative Analysis’
by Hin-Yan Liu
- ‘Vicarious Punishment: An Employer’s Vicarious Liability for Exemplary Damages’
by Edward Taylor
- ‘Assessing the Contributions of the EC at the WTO in Facilitating Access to Affordable Medicines in Africa’
by Sharifah Rahma Sekalala and Kingah Sevidzen
- ‘Of What Value if Gramsci’s Concept of Hegemony to our Understanding of Law Today?’
by Sara Fantoni