Anglia Ruskin Law Review Volume 1, Issue 1

(2016) Vol. 1, Issue 1

The Anglia Ruskin Law Review

THE ANGLIA RUSKIN LAW REVIEW

VOLUME 1 ISSUE 1 SEPTEMBER 2016

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EDITORIAL BOARD

Executives Hugo Haub (Editor in Chief) Bethan Livingstone (Deputy Editor in Chief)

Editorial Committee Rowan Gaskell Eeshan Khaire Martins MBA Nicole Richards

Academic Committee Aldo Zammit-Borda Helga Hejny Michelle McCanna Alexander Murray

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A Foreword from the Research Convenor Students from Anglia Law School have taken their first step in launching the Anglia Ruskin Law Review, the first publication from the school to allow students a platform to showcase their literary legal talent to the world. The writing brings the background research to each of the four very different articles alive. Under the stewardship of Hugo Haub, the editorial committee has done well in selecting from the myriad of submissions an impressive collection. One entry in particular, Brexit and Environmental Law, by Maelya Maunick, has the added bonus of winning the student prize for best entry as chosen by her peers, and deservedly so: Maelya's piece goes to the very heart of the discussion of the implications of Brexit to UK environmental policy, which she persuasively argues has seen great improvement under EU membership.

Each of the contributing authors should be congratulated for taking the time and skill in crafting their individual pieces. Some would argue that a talent for writing is Godgiven. In reality, much of the skill lies in writing and rewriting in a long, hard process to final copy. Hugo discusses each of the articles in his introduction that follows and so I will not dwell further. The authors had the advice and feedback of the Academic Committee, who worked in partnership with the Editorial Committee to finalise the articles for publication. This is not an easy affair and involves a level of compromise.

Often, compromise can lead to a lowest common denominator, something dilute and lacking in passion, but not in this case. Hugo and his team should be proud of this first edition. The challenge now for the ARLR will be to repeat the feat with the next issue!

Professor Rohan Kariyawasam

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Introduction from the Editor in Chief It is with great joy that, with the help of Anglia Law School and our fantastic Editorial Committee, I am able to unveil the First Issue of the Anglia Ruskin Law Review.

The content of the First Issue varies but evidences the ambition and tenacity of the students of ARU to contend with challenging legal concepts. My Deputy Editor in Chief, Bethan Livingstone, was responsible for coining our mission statement:

“The Anglia Ruskin Law Review strives to promote academic excellence and is dedicated to addressing controversial or leading legal issues.”

Strife and dedication were certainly the operative words as we set about our work.

With just a month to encourage submissions, enthusiasm in lieu of experience and a skeleton Editorial Committee; we had our work cut out for us. After a bout of shameless self-promotion, we were grateful to find students were willing to contribute their best in order for us to cultivate the growth and development of our journal’s First Issue.

The First Issue is comprised of four articles, opening with Lewis Hadler’s research which focuses on the origins of the doctrine of State Sovereignty and its relationship with the emergence and evolution over recent decades of Humanitarian Intervention as a rival concept. Hadler finished his LLB with ARU in 2015 with a history of extra-curricular achievement and academic notoriety. The second was written by myself after a semester of impassioned property law lectures from Lisa Ellis which fostered in me a keen interest in the subject. My research is an analysis of the law of implied easements focusing on the varied interpretation of necessity and propagating an argument for reform. The third article, which was the winner of our competition for best submission, was written by Maelya Maunick. Maunick has just finished the final year of her LLB and is now pursuing her ambitions to become a barrister specialising in international law.

Maunick writes topically about the effect of the United Kingdom leaving the European Union on environmental law. Our final article was written by Clara Sibanda, the President of the University’s Law Society in Chelmsford. As a keen advocate of equality and following another successful year of London Pride, Sibanda considers the current position on same sex marriage in the United Kingdom in particular as regards the state of the law since the passing of the Marriage (Same Sex Couples) Act 2013.

Speaking for the whole of the Editorial Committee, we hope you enjoy our First Issue and are open to any feedback readers may wish to submit.

HUGO HAUB

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With Special Thanks We would like to thank in particular, Rohan Kariyawasam, ARU’s Research Convenor, who supported us from the Review’s inception; Penny English, the Law School’s Head of Department who, alongside Rohan, convinced the Law School to give us the official go ahead; Gareth Long, the University’s IT specialists, who designed our webpage and David Williams (‘The Running Head’), a professional editor who tailored a short editorial course for our Committee.

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Contents

State Sovereignty and Humanitarian Intervention by Lewis Hadler Page…1-20

The Law of Implied Easements’ Necessity Spectrum by Hugo Haub Page…21-32

The Effect of Brexit on Environmental Law by Maelya Maunick Page…33-52

Same Sex Marriage: Legal Progression or Appeasement of the Masses by Clara Sibanda Page...53-72

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State Sovereignty and Humanitarian Intervention Lewis Hadler Abstract

This article examines the origins of the doctrine of State Sovereignty and its relationship with the emergence and evolution over recent decades of Humanitarian Intervention as a rival concept. The interplay between and weighting given to each founds one of the most hotly contested debates in relation to international law. The two competing concepts have featured in every armed conflict over recent decades, and have been instrumental in maintaining the rift between superpowers. The article was written whilst the Syrian civil war was ongoing, but had not yet reached the horrors of its current phase. The current conflict raises serious moral questions over the degree to which outsiders have a right to intervene, or in its current formulation: responsibility to protect citizens of other countries. This article is intended to serve as an introduction and launchpad for thought, reflection and discussion of the topic.

Introduction

“I think no one knows what humanitarian intervention means. If I were a person who was non-American, I would think humanitarian intervention is just another name for United States imperialism.”1 State sovereignty has been considered a central doctrine of international law since the establishment of the customary principle of non-intervention at the signing of the

1

Noah Berlatsky, ”What Makes America So Prone to Intervention?” (The Atlantic, 2 September 2013) <http://www.theatlantic.com/national/archive/2013/09/what-makes-america-so-prone-tointervention/279393/> accessed 28 October 2016

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1648 Peace of Westphalia.2 Over the last 50 years this inviolable doctrine has come into increasing conflict with emerging human rights considered equally inviolable. The question of when, how, and to what extent, is it permissible to use force to interfere with the internal affairs of a sovereign state to prevent or end human rights violations under the principle of humanitarian intervention has become a “very highly contested” area of international law.3

The core principles of the concepts above are controversial; but the terminology used to describe them is more so. Phrases such as “humanitarian intervention,” “forcible intervention,” “right to intervene,” or “responsibility to protect” have provoked strong opposition and so the discourse has been shifted by supporters of humanitarian intervention towards “responsibility” and “protection,” and away from the more provocative “right” and “intervention.”

The debate ranges from absolute rejection of humanitarian intervention; to those that believe intervention is legitimate as a last resort under certain circumstances; and to those that believe the principle should be extended and recognised as a legal

2

Michael Kelly, “Pulling at the Threads of Westphalia: ‘Involuntary Sovereignty Waiver’ — Revolutionary International Theory or Return to Rule by the Great Powers?” 10 (2005) UCLA Journal of International Law and Foreign Affairs 361, 374.

3 Matthew Waxman, “Intervention In Libya -- Options For the Obama Administration” (Council on Foreign Relations, 9 March 2011) <http://www.cfr.org/libya/intervention-libya----options-obamaadministration/p24350> accessed 5 May 2015.

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exception to the prohibition on the use of force. Some, such as Orford, have drawn parallels between humanitarian intervention and stereotypes of Western colonialism.4

The dawn of the 1990s saw events conspire to propel humanitarian intervention towards the centre stage of international politics. Military capabilities once paralysed in the deadlock of the Cold War could be freed up to “save lives rather than destroy them.”5 The collapse of the Soviet Union fanned the smoldering touch-paper of the decade-long constitutional crisis in former Yugoslavia, leading to a series of civil wars defined by systematic and significant human rights breaches.

Despite acceptance under the Geneva Convention in 19776 that the offer of humanitarian assistance is not in itself intervention or a hostile act,7 before the end of the Cold War almost any kind of assistance or protection of civilians was seen to violate state sovereignty.8 When the Cold War ended, in the face of a newly invigorated concept of humanitarian intervention,9 the traditional doctrine of state sovereignty began being displaced by a “growth of norms recognising the enforceability of rights of individuals against states for the violation of humanitarian legal norms.”10 The

4

Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (CUP 2003) 20, 158-185.

5

Benjamin A Valentino, “The True Cost of Humanitarian Intervention” 90 [2011] Foreign Aff 60, 61.

Geneva Convention, Protocol I, Article 70(1) (2).

7 Ingrid Detter, The Law of War (3rd edn Ashgate 2013) 108.

8 Richard Price, The United Nations and Global Security (Palgrave 2004) 168-9.

9 Jon Western and Joshua Goldstein, “Humanitarian Intervention Comes of Age” (Foreign Affairs, December 2011) <https://www.foreignaffairs.com/articles/2011-11-01/humanitarian-interventioncomes-age> accessed 5 May 2015.

10 Aldo Zammit-Borda, ‘Introduction’ in A Zammit-Borda (ed) International Humanitarian Law and the International Red Cross and Red Crescent Movement (Routledge 2013) 4.

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question had become; can these emerging norms constitute customary international law?

Humanitarian Intervention

For the purposes of this article, we are talking of humanitarian intervention in the sense of “forcible military intervention” in the absence of “consent of the government of the state;”11 excluding humanitarian aid and instances in which the host state has invited assistance. The description of humanitarian intervention will be taken as:

The threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied.12

Oxymoronic in nature, humanitarian intervention as a phrase has over the last decadeand-a-half been rebranded as a ‘responsibility to protect’ (“R2P”)13 citizens of a country whose government has failed them. This metamorphosis has in many ways aided in strengthening the presumption in favour of international intervention for humanitarian reasons. It relieves some of the objections to such an apparent breach of the right of

11

Dr Jasmeet Gulati & Ivan Khosa, ‘Humanitarian Intervention: To Protect State Sovereignty’ [2013] 41 Denv J Int’l L & Pol’y 399.

12 Jeff L Holzgrefe, Humanitarian Intervention: Ethical, Legal and Political Dilemmas (CUP 2003) 18.

13 See United Nations, 'A More Secure World: Or Shared Responsibility – Report of the SecretaryGeneral’s High-Level Panel on Threats, Challenges and Change' (2004).

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state sovereignty by balancing corresponding responsibilities to the right of state sovereignty; regardless, intervention for humanitarian purposes is still met by much the same resistance. This debate highlights the difference between international law and international morality and as a result humanitarian intervention has developed to fill “the abyss.”14

Emergence of Humanitarian Intervention

Due to the failure of the intervention in Somalia in 1993,15 it was decided in the mid1990s that UN intervention should focus on the “most strategically important areas of the world.”16 This is one of the contributing factors to the failures of the international community to take action to prevent or stop the 1994 genocide in Rwanda. Those in favour of humanitarian intervention outside of Security Council (“SC”) authorisation point to the frigidity of the international community in the face of the Rwandan genocide and say never again. It was estimated that a private army, free of political constraints could have, for a fifth of the cost of UNAMIR, prevented this catastrophe.17

It was not so much respect for the state sovereignty of Rwanda that dissuaded the world’s major governments and the UN from taking action in the face of genocide, it was rather a “reluctance of Member States to pay the human and other costs of

14

Gulati and Khosa (n 11) 411.

Thomas Jacobson, ‘U.N. Peacekeeping: Few Successes, Many Failures, Inherent Flaws’ [2012] International Diplomacy & Public Policy Center, 1.

16 Price (n 8) 170.

17 Andrzej Sitkowski, UN Peacekeeping: Myth and Reality (Praeger Security International, 2006) 152.

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intervention, and doubts that the use of force would be successful,”18 especially in the light of the recent, and slightly embarrassing, failure to restore stability in Somalia.19 A focus on ‘quick wins’ and ‘effective exit strategies’ was also complicit in the UN’s reticence against action.

The UN became increasingly dependant on regional organisations and coalitions to mount peace enforcement operations during the 1990s.20 This eroded its role as the global legitimising authority for the use of force21which contributed to the move towards possible legitimisation outside of the SC.

The legitimacy of humanitarian intervention lacking legal authority was for many nonetheless affirmed and justified with NATO intervention in Kosovo in 1999— described as the first “humanitarian war”22—the clearest example of what was considered legitimate intervention without UNSCR authorisation.

Russia objected to intervention in Kosovo and threatened to veto any UNSCR authorising force. In the absence of a vote it was suggested that in such circumstances acquiescence from the SC grants a foothold for arguing external legitimacy. The SC rejected attempts by Russia and Belarus to have the NATO bombing declared illegal,

18

Kofi Annan, Preventing War and Disaster: a Growing Global Challenge (UN, 1999) 21.

Price (n 8) 169-70.

20 Jane Boulden, ‘NATO and the United Nations During UNPROFOR’ <http://www.nato.int/acad/fellow/99-01/boulden.pdf> (accessed 4 May 2015) 1.

21 Price (n 8) xv.

22 ‘Endgame in Kosovo’ <http://www.nytimes.com/packages/html/world/20071209_KOSOVO_FEATURE/index.html> (The New York Times, 9 December 2007) accessed 4 May 2015.

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although Human Rights Watch did conclude that NATO had violated IHL, and Amnesty International accused NATO of war crimes.23 It is difficult to argue that the actions of NATO were legal under the Charter. However, the conflict in Kosovo marked an important point in the development of humanitarian intervention and highlighted “a widening consensus that there is an unacceptable gap between what international law allows and what morality requires.”24

Beyond the Charter, humanitarian intervention has also over the last 25 years become increasingly customary international law and this is reflected in state practice, such as in Iraq in 1991, Somalia in 1993 and Kosovo in 1999 as well as in opinio juris.25 Through the building of international support for a particular action it seems the need for legality is negated through collective self-legitimacy.26

The UN Charter

Member States are obliged to settle disputes peacefully27 and the customary norm prohibiting the use of force is specifically addressed in Article 2(4) of the Charter, limiting both the threat and use of force in international relations stating that ‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other

23

Valentino (n 5) 64.

Allen Buchanan, Humanitarian Intervention: Ethical, Legal and Political Dilemmas (CUP 2003) 131.

25 Dapo Akande, ‘The Legality of Military Action in Syria: Humanitarian Intervention and Responsibility to Protect’ (EJIL: Talk!, 28 August 2013) <http://www.ejiltalk.org/humanitarian-interventionresponsibility-to-protect-and-the-legality-of-military-action-in-syria/> accessed 8 May 2015.

26 Waxman (n 3).

27 Charter of the United Nations (‘The Charter’), Article 2 (3).

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manner inconsistent with the Purposes of the United Nations.’28 Article 51 of the Charter makes clear that Article 2(4) does not affect the existing customary norm that permits individual or collective self defence holding that ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations29

Article 2(7) reinforces the customary international law principles of non-intervention and state sovereignty:—

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.30 Chapter VII gives teeth to the Charter and grants the UN Security Council (“SC”) the power to enforce the Articles. Under Chapter VII the SC has the power to give legal authorisation for the use of force and permission to interfere with internal territorial matters through the passing of UNSC Resolutions (“UNSCR”); thus being established as the sole legitimising authority for both the use of force, and international interventions against state sovereignty.

28

Ibid, Article 2 (4).

Ibid, Article 51.

30 Ibid, Article 2 (7).

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Arguments against humanitarian intervention are focused on the inviolability of the doctrine of state sovereignty and the general prohibition of the use of force. Article 2(4), prohibiting the use of force, has been confirmed as being a restatement of the existing customary international law in the Nicaragua case of 1986.31 To some this has achieved the status of a jus cogens norm.32 However, this argument relies on the efficient workings of the SC, specifically the veto system, meaning it can be difficult, sometimes impossible, for authorisation to be granted, even where significant human rights abuses are taking place such as in Kosovo in 1999.

These difficulties have led to the need to develop methods to legitimise humanitarian intervention outside of legal authority. The Nicaragua case, whilst holding that the use of force prohibited in customary international law, based its decision outside of Article 2(4). In doing this, the ICJ set out seemingly arbitrary differentiations in customary law between the legality of the use of force in circumstances of self-defence as compared to collective self-defence.33 It was claimed that this weakened the prohibition of the use for force and created “open-ended…exceptions to Article 2(4)…of unknown content and limit,”34 presenting the possibility of humanitarian motives being used to legitimise the use of force outside of SC authorisation.

Countering this argument is that the prohibition of the use of force under Article 2(4) relates to force used in a “manner inconsistent with the purposes of the United

31

John L Hargrove, ’Appraisals of Nicaragua v United States’ 81 [1987] Am J Int’l L 78, 137.

Nicaragua v United States [1986] ICJ 14, 190 (Judge Nagendra Singh).

33 Hargrove (n 31) 141.

34 Ibid, 142.

32

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Nations”—therefore implying that given certain circumstances humanitarian intervention can be seen as negating the prohibition of the use of force, providing that the intervention is aligned with the purpose of the UN, which is set out in the Articles of the Charter as follows:—

[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of (1) threats to the peace, and for the (2) suppression of acts of aggression or (3) other breaches of the peace, and to bring about by peaceful means… adjustment or settlement of international disputes or situations which might lead to a breach of the peace.35 This argument has some force as Article 1(3) sets out the purpose more specifically as “solving international problems of a…humanitarian character and in promoting and encouraging respect for human rights…”36

The use of outside force to stop human rights violations in a particular country has at times been driven by public emotional response to suffering meets fierce resistance founded in the doctrine of state sovereignty and worries that humanitarian action should not become an “intervener’s charter.” The universality of human rights is central to the dynamics of the justification of humanitarian intervention, but is also the very essence of objections to it on the grounds of the inviolability nature of state sovereignty.

35 36

The Charter (n 27) Article 1 (1).

Ibid, Article 1 (3).

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It is accepted that there are circumstances where inviolability of state sovereignty may be set aside and legal and legitimate force may be used and it is the United Nations (“UN”), governed by the Charter of the UN (“the Charter”) and now consisting of 192 Member States, that, from its formation in 1945 established itself as chief legitimising authority for the international use of force.37

State Sovereignty

As above, the strongest argument against humanitarian intervention seems to be that it offends the principle of state sovereignty, rejecting the notion that it is a customary norm, founded on interpretation of the Articles of the Charter and the idea that it constitutes a jus cogens norm from the Nicaragua case. Because of this, it is claimed that humanitarian intervention cannot establish itself as customary international law.

However, against this sits the fact that prevention of genocide is also a jus cogens norm.38

Perhaps the strongest and most coherent counter to this is posited by Gulati and Khosa, who, through their deconstruction of the concept of sovereignty, present the argument that the source of sovereign power reveals a chink in the armour.39 The argument is that sovereign power is intangible and to be enforced it must be vested in a tangible sovereign authority through a form of social contract. The root of the

37

Price (n 8) xv.

Cherif Bassiouni, ‘International Crimes: Jus Cogens And Obligatio Erga Omnes’ [1997] 59 4 Law and Contemporary Problems, 63.

39 Gulati and Khosa (n 11) 403-10.

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concept of sovereignty lies in the sovereign power, and not in the sovereign authority.40 The sovereign authority’s purpose of enforcing the sovereign power is essentially ‘the rule of law.’41 Theories about sovereignty and the rule of law converge on the concept that the purpose of both is ‘the protection of life and men’ and the sovereign cannot go against this.42

So what is to be done where the sovereign goes against this purpose of the social contract or the rule of law? This is where humanitarian intervention comes into play; when the sovereign authority violates the basic purpose for which sovereign power is vested in it, that authority ceases to be sovereign. By threatening the lives of citizens, the sovereign authority violates sovereignty.43 Therefore, humanitarian intervention is sought and carried out against this abuse of power by the sovereign authority. It can be said that every intervention is directed against the “ruling authority” in which the sovereign is vested. The only variable determining the legality of intervention is the relation of the “intervener” and the “ruling authority” with the sovereign power.44

The problem with this is the distinction of when it becomes appropriate to deem a sovereign authority in breach of its sovereign responsibilities, and furthermore, who decides this. Despite this issue, it is this idea of “sovereign responsibility” that is the

40

Ibid, 403.

Ibid, 404.

42 Ibid, 404-5.

43 Ibid, 408.

44 Ibid.

41

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key premise of the recent move from “humanitarian intervention” to a “responsibility to protect.”

In 1999 Tony Blair, in response to the conflict in Kosovo, set out what he believed to be the limits of non-interference in a speech at the Chicago Economic Club. Blair believed there to be five questions that must be asked when deciding whether or not to intervene: Are we sure of our case? Have we exhausted all diplomatic options? Are there military operations we can sensibly and prudently undertake? Are we prepared for the long term? Do we have national interests involved?45 The aim of these criteria was to set clear circumstances in which the use of force can be legitimised outside of legal authorisation from the SC and marked a change in discourse, reframing state sovereignty as having corresponding responsibilities, which, if breached, gave outside parties the “right to intervene.”

This ‘Blair Doctrine’46 prompted Kofi Annan, then Secretary-General of the UN, to ask: ‘[i]f humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights that offend every precept of our common humanity?’47 Two years later the International Commission on Intervention and State Sovereignty (“ICISS”) was set up to answer this, and investigated the interplay between the need to prevent

45

Tony Blair, ‘The Blair Doctrine’ (Global Policy Forum, 22 April 1999) <https://www.globalpolicy.org/component/content/article/154/26026.html> (accessed 8 May 2015).

46 Paul Reynolds, ‘Blair's “international community” doctrine’ (BBC News, 6 March 2004) <http://news.bbc.co.uk/1/hi/uk_politics/3539125.stm> accessed 4 May 2015.

47 Kofi Annan, We the Peoples: The Role of the United Nations in the 21st Century (United Nations 2000) 48.

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humanitarian atrocities and the maintenance of the integrity of state sovereignty. It was through this that a change of discourse emerged. Instead of justifying a “right to intervene” of any State, the focus was instead shifted onto justifying the negation of the “responsibility to protect” of every State in the face of emerging and sustained humanitarian crises.48 It became clear that sovereignty was now conditional on responsible behaviour, with the new doctrine of the “responsibility to protect” (“R2P”) being unanimously endorsed at the UN’s World Summit”49 whilst it being made clear that R2P is not “solely about military intervention but, if it is to have any meaning at all, must include that option as a last resort.”50 It would seem from this progression that it has been accepted that the importance of state sovereignty is now very much conditional and the door opened for humanitarian intervention to gain further legitimacy through its development as customary international law.

Moral Argument

"Use any euphemism you wish, but in the end these interventions have to be about regime change if they are to have any chance of accomplishing their stated goal.”51

It is objection to such underlying motives that forms another strong argument against humanitarian intervention. There is, for some, a danger in placing a “higher moral

48

The United Nations (n13) [201].

Wester and Goldstein (n 9).

50 Ramesh Thakur, ‘Why the international community is powerless with Libya’ (Ottawa Citizen, 10 March 2011) <http://www2.canada.com/ottawacitizen/news/archives/story.html?id=5b9c904b-f1f4-42eb81b5-62b95be96573&p=2> accessed 7 May 2015.

51 David Rieff, ‘Humanitarian Vanities’ (New York Times Magazine, 1 June 2008) http://www.nytimes.com/2008/06/01/magazine/01wwln-lede-t.html?_r=0 accessed 8 May 2015.

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value…on individual rights than on state integrity”52 as state integrity is essential in ensuring stable international relations. However, when the individual rights in question amount to violations against hundreds of thousands, if not millions of people, is there a point at which the scale tips?

Humanitarian intervention inevitably entails picking a side and military action designed to protect one group of civilians, often ends up harming another group of civilians inadvertently. As it has been pointed out, “aiding defenceless civilians has usually meant empowering armed factions claiming to represent these victims, groups that are frequently responsible for major human rights abuses of their own:”53 a situation found in the conflicts in Bosnia and Kosovo where there were substantial human rights abuses on both sides. Another problem, indicated above, is that humanitarian intervention has become synonymous with the removal of dictatorships and the inevitably highly politicised process of ‘regime change.’ This has served to damage the legitimacy of such intervention due to the potential for abuse through ulterior political motives. However, Pattison argues that “intentions” means “preventing, reducing, or halting the humanitarian crisis” whereas “motive” is the “underlying reason for undertaking the humanitarian intervention,”54 and the question must be asked: to what

52

William Magnuson, ‘The responsibility to Protect and the Decline of Sovereignty: Free Speech Protection Under International Law’ [2010] 43 Vanderbilt Journal Of Transnational Law 294.

53 Valentino (n 5) 63.

54 James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene?

(OUP 2010) 154-55.

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extent does ulterior motive detract from the benefit of humanitarian intervention when the intention serves to prevent atrocities?

The clash between state sovereignty and humanitarian intervention, despite difficulties, is still in the process of a dramatic reform. The divisive nature of the veto power in the SC and the rise of human rights lead to the necessity for it to be possible for the rival doctrine of state sovereignty to be set aside. The SC has found it difficult to play the definitive role envisaged for it and has been guilty of inaction. A different model or reform of the voting and veto system may be beneficial in rectifying this.

Despite the difficulties encountered: should the international community be willing to say never again and refuse to stand by as unspeakable horrors unfold? Even with these changes, would the international community now act to stop another Rwandan genocide? Or have the issues raised by the introduction of the idea of R2P created a â&#x20AC;&#x2DC;political monsterâ&#x20AC;&#x2122;? It is difficult to tell. Only once the new concept of R2P is put through its paces will answers begin to emerge and scholars be able to begin to pass judgment.

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Bibliography Books Buchanan A, ‘Reforming the Law of Humanitarian Intervention’ in J L Holzgrefe & R O Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (CUP 2003).

Detter I, The Law of War (3rd edn Ashgate 2013).

Holzgrefe J L, ‘The Humanitarian Intervention Debate’ in J L Holzgrefe & R O Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (CUP 2003).

Orford A, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (CUP 2003).

Pattison J, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (OUP 2010).

Price R, The United Nations and Global Security (Palgrave 2004).

Sitkowski A, ‘UN Peacekeeping: Myth and Reality’ (Praeger Security International, 2006).

Zammit-Borda A, ‘Introduction: International Humanitarian Law and the International Red Cross and Red Crescent Movement’ (Routledge 2013).

Articles Gulati J and Khosa I, Humanitarian Intervention: To Protect State Sovereignty, Vol 41 [2013] Denv J Int’l L & Pol’y 399.

Hargrove J L, “Appraisals of Nicaragua v United States” 81 [1987] Am J Int’l L 78.

Jacobson T, “U.N. Peacekeeping: Few Successes, Many Failures, Inherent Flaws” [2012] International Diplomacy & Public Policy Center.

Kelly, M. “Pulling at the Threads of Westphalia: ‘Involuntary Sovereignty Waiver’ — Revolutionary International Theory or Return to Rule by the Great Powers?” 10 (2005) UCLA J Int’l & Foreign Aff 361.

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Magnuson W, “The Responsibility to Protect and the Decline of Sovereignty: Free Speech Protection Under International Law” Vol 43 Vanderbilt Journal of Transnational Law [2010] 294.

Valentino B A, “The True Cost of Humanitarian Intervention” 90 [2011] Foreign Aff 60

Online Articles Akande D, “The Legality of Military Action in Syria: Humanitarian Intervention and Responsibility to Protect” (EJIL: Talk!, 28 August 2013) <http://www.ejiltalk.org/humanitarian-intervention-responsibility-to-protect-andthe-legality-of-military-action-in-syria/> accessed 8 May 2015.

Berlatsky N, ”What Makes America So Prone to Intervention?” (The Atlantic, 2 September 2013) <http://www.theatlantic.com/national/archive/2013/09/whatmakes-america-so-prone-to-intervention/279393/> accessed 28 October 2016 Blair T, “The Blair Doctrine” (Global Policy Forum, 22 April 1999) <https://www.globalpolicy.org/component/content/article/154/26026.html> accessed 8 May 2015.

Boulden J, “NATO and the United Nations During UNPROFOR” <http://www.nato.int/acad/fellow/99-01/boulden.pdf> accessed 4 May 2015.

Goldstein S J and Western J, “Humanitarian Intervention Comes of Age” (Foreign Affairs, December 2011) <https://www.foreignaffairs.com/articles/2011-1101/humanitarian-intervention-comes-age> accessed 5 May 2015.

Waxman M C, “Intervention in Libya -- Options for the Obama Administration” (Council on Foreign Relations, 9 March 2011) <http://www.cfr.org/libya/interventionlibya----options-obama-administration/p24350> accessed 5 May 2015.

Online Newspapers -- “Endgame in Kosovo” <http://www.nytimes.com/packages/html/world/20071209_KOSOVO_FEATURE/index .html> (The New York Times, 9 December 2007) accessed 4 May 2015.

Rieff D, “Humanitarian Vanities” (New York Times Magazine, 1 June 2008) http://www.nytimes.com/2008/06/01/magazine/01wwln-lede-t.html?_r=0 accessed 8 May 2015.

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Reynolds P, “Blair's 'international community' doctrine” (BBC News, 6 March 2004) <http://news.bbc.co.uk/1/hi/uk_politics/3539125.stm> accessed 4 May 2015.

Thakur R, “Why the international community is powerless with Libya” (Ottawa Citizen, 10 March 2011) <http://www2.canada.com/ottawacitizen/news/archives/story.html?id=5b9c904bf1f4-42eb-81b5-62b95be96573&p=2> accessed 7 May 2015.

Other/Speeches/Reports Annan K, “We the Peoples: The Role of the United Nations in the 21st Century” (United Nations 2000).

The United Nations, ‘A More Secure World: Our shared responsibility’ (2004).

Cases Nicaragua v United States [1986] ICJ 14 Legislation Charter of the United Nations 1948 Geneva Convention, Protocol I, Article 70 Kofi Annan, Preventing War and Disaster: a Growing Global Challenge (New York: UN, 1999)

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Hugo Haub

The Necessity Spectrum Hugo Haub

Abstract

This article revisits and reconsiders the controversial law of implied easements from a new perspective. Taking into account the pressure from the Law Commission to implement reforms, it will be shown that those reforms are not only appropriate, but logical. Necessity acts as an integral part of the common law tests for implication. With this in mind, analysis of the court’s approach to deciding what will classify as necessary for the different tests will show that the interpretation varies from test to test. This is how the courts have created a necessity spectrum.

And much like the political

spectrum - or even a biologist’s pH scale, the product at one end differs significantly from that of the other.

Introduction

This article will argue that the law of implied easements has created a semantical conundrum in its varied interpretation of necessity. In the context of implied easements, what is a necessity? It is apparent from analysis of the tests that the law of implied easements has unwittingly begat a spectrum with several forms of necessity – a ‘necessity spectrum’. A lawyer acting for a client who wishes to claim an easement by implication might wonder to themselves: what sort of necessity must I prove? The

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practical consequences of affording claimants different grades of necessity have led to much complexity and uncertainty in the law so as an ancillary argument, this article will also advocate the Law Commissionâ&#x20AC;&#x2122;s proposals for reforming the law to a single statutory test of reasonable necessity.1

If I was to say I am willing to give you a glass of water if it is reasonably necessary, it is clear that the point of dehydration (if not sooner) would entitle you to partake in my offer. Alternatively, I may decide that you may only drink the glass of water if it is necessary for your survival. More criptically, I might only give it to you if by looking at the reason we agreed to meet, it would be difficult to carry out our purpose without you drinking the water (a sporting venture perhaps). Regardless of how I chose to dispense the glass of water, it is arguable that there will be a time when it will become necessary for you to drink it but by varying my criteria for what will constitute necessity it may be unclear when or indeed if I am going to let you drink the water. Whilst my

intention to give you the glass of water is a fundemental element of this deal, the justifying factor which will qualify you to drink the water is your necessity to do so. I am of course speaking by way of analogy of the law of implied easementsâ&#x20AC;&#x2122; tests and have hopefully illuminated the (ideally hydrated) reader to the folly of the current law.

Do we need so many gradations of necessity?

1

Law Commission, Making Land Work: Easements, Covenants and Profits a Prendre (Law Com No 327, 2011) para 3.32.

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Before going on to look at the varying forms of necessity, an outline of the current law will be briefly summarised. An easement is quite simply ‘a right over the land of another, which has certain limiting characteristics’ and is proprietary in nature.2 Easements are incorporeal hereditaments3 meaning they are intangible property and are capable of being legal4 or equitable.5 Easements arise by implication generally after the sale of part of a property and may be implied either by grant or reservation. An easement implied by the grant creates a right over the seller’s land for the buyer and vice versa for easements implied by reservation.

The Spectrum

This article demostrates that the tests have created at least five grades of necessity. At common law, the first test is necessity (referred to as ‘strict necessity’ to avoid confusion). Strict necessity is used to imply an easement to access otherwise inaccessible land although there has been some suggestion it has other applications.6 The second addition to the spectrum is derived from the doctrine of common intention. Under this doctrine, easements can be implied if they are ‘necessary to give effect to the common intention of the parties’.7 Common intention easements are necessary for the use of the land for the purpose of the grant. The third method is

2

Jonathan Gaunt and Justice Morgan, Gale on Easements (19th edn, Sweet & Maxwell 2012) 4-5.

Law of Property Act (‘LPA’) 1925 s. 205 (1) (ix).

4 Ibid, s 1(2)(a).

5 If does not satisfy s. 1(2)(a) can be equitable under s. 1 (3) LPA. 6 Walby v Walby [2012] EWHC 3089 (Ch); [2013] 1 P & CR DG6, 14 (Morgam J).

7 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, 646-647 (Lord Parker).

3

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known as the rule in Wheeldon v Burrows.8 Under Wheeldon, continuous and apparent ‘quasi-easements’ being exercised at the time of the sale by the seller over its land which are ‘reasonably necessary’ for the use of the land will pass as easements to a buyer of the part of the property which benefits from the quasi-easement. The doctrines of strict necessity and common intention which can be used by the seller of the land to reserve an easement by implication create two further more draconian forms of necessity.

Although Section 62 of the Law of Property Act 1925 is often considered a statutory means for the creation of an implied easement, the Law Commission held that this was an express grant of easement and as such will fall outside the scope of this article.9

The interpretation of necessity under the doctrine of strict necessity falls at the onerous end of the spectrum, its applicability being somewhat limited. The only factor that will make this implication necessary is if the land would be inaccessible without it. The Law Commission illustrate10 the strict nature of this test by referring to Manjang v

Drammeh.11 In this case, it was held that access across water would mean a right of way over the neighbouring land would not be necessary. Lord Oliver stipulated that ‘an available access by water, albeit perhaps less convenient than access across terra

firma, is sufficient to negative any implication of a way of necessity’.12

8

Wheeldon v Burrows (1879) 12 Ch D 31 (CA), 49 (Thesinger LJ).

9

Law Com No 327, para 3.58.

Ibid, para 3.12-3.14.

11 Manjang v Drammeh (1990) 61 P & CR 194.

12 Ibid, 197 (Lord Oliver).

10

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The doctrine of common intention can be used to imply easements that are necessary to realise the purpose of the parties for transferring the property. Common intention necessity is situated in the middle of the spectrum. As Lord Parker suggests in Pwllbach

Colliery, this doctrine creates a different concept of necessity. 13 Under the doctrine of common intention, an easement is necessary if it would not be possible to use the land for the purpose of the grant if the easement was not implied. In the seminal example of Wong v Beaumont Property Trust14 an easement to maintain an extractor fan on the seller’s land was necessary for the use of the demise as a restaurant.

Donovan v Rana15 is a more recent example of the doctrine in action and further illustrates the middle ground of the necessity spectrum. On appeal, the Court found that an easement of access to amenities had been implied by common intention as it was necessary for the purpose that the land was sold for i.e. to build a residential home.

Vos LJ affirmed the position of Lord Parker in Pwllbach, stipulating that it was not the reasonableness, desirability or even the plain normality that was integral to the implication but instead, the necessity.16 He then elaborated as to how necessary the easement needed to be stating that ‘[t]he dwelling-house that the parties undoubtedly expected to be built could […] have used a septic tank and a bore-hole or a well, or could have obtained its service connections across other land.’17 Notwithstanding this

13

Pwllbach (n 7).

Wong v Beaumont Property Trust [1965] 1 QB 173 (CA).

15 Donovan v Rana [2014] EWCA Civ 99; [2014] 1 P.& CR 23 (CA).

14

16 17

Ibid, [30] (Vos LJ).

Ibid.

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argument, he concluded that although it was not absolutely necessary for the common intention of the grant, the test would still be satisfied stating that:

the building of a dwelling house on the building plot to the satisfaction of the Local Authority was to be undertaken in a definite and particular manner. That manner must be taken to have included the connection to mains utility services and the maintenance of those connections across the obvious route, namely the Blue Land.18

In other words, the easement would have been contemplated by the parties as being

necessary at the time of the sale.

The Wheeldon v Burrows19 necessity falls at the liberal end of the spectrum but the class who can benefit from its application is narrow, and it is not possible for a seller to reserve an easement through this method. For implication, these easements must be in use at the time of the grant (as quasi-easements) in a manner that is continuous and apparent. The trouble with the qualifying features of the test will not be discussed here but rather the type of easements which are considered reasonably necessary. In

Millman v Ellis20 an easement of way was granted because it was reasonably necessary for the convenient use of the land21 demonstrating the wide and generous interpretation of necessity in the Wheeldon sense.

18

Ibid, [32] (Vos LJ).

Wheeldon (n 8).

20 Millman v Ellis (1996) 71 PC & R 158.

21 Ibid 164.

19

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The apprehension of Wheeldon necessity in case law seems to lean in some instances towards the unnecessary-but-useful. In P&S Platt Ltd v Crouch an easement to use a mooring post could have been reasonably necessary (although it failed the test as its use was not continuous and apparent) showing a much more lenient interpretation of necessity compared with the other doctrines.22

The two further additions to the spectrum are created by the tests for implication by reservation.23 As Cheshire suggests24 there are two reasons for the law’s reluctance to imply an easement by reservation.

1. In Neill v Duke of Devonshire Lord Selbourne stated: ‘It is well settled that the words of a deed, executed for valuable consideration, ought to be construed, as far as they properly may, in favour of the grantee.’25 2. A grantor must not derogate from his grant26

London Corporation v Riggs held that for an easement to be implied under strict necessity by reservation, it must be necessary for the mode of enjoyment of that land.

The only easements which will be considered necessary enough to satisfy the test for common intention favouring the seller’s land appear to be rights of support27 and

22 23

P&S Platt Ltd v Crouch [2002] EWHC 2195 (Ch); [2002] 45 EG 153 (C.S.).

Colin Sara, Boundaries and Easements (6th Edn, 2015 Sweet and Maxwell) at 264-266 they are

identified almost as entirely different tests.

Edward H Burn and John Cartwright, Cheshire and Burns Modern Law of Real Property (18th edn, OUP 2011) 660.

25 Neill v Duke of Devonshire [1882] 8 App Cas 135, 149 (Lord Selborne).

26 Suffield v Brown (1864) 46 ER 888 (QB) (Lord Westbury).

27 Re Webb’s Lease 1951 Ch. 808 24

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light.28 Although the test is not limited to these easements alone, for the reasons mentioned above, implication by reservation under the doctrine of common intention is unlikely.

Analytical Conclusion As has been shown, the courts in cases pertaining to the law of implied easements have created a necessity spectrum. It is conceded that some of the above-mentioned variations of necessity may be fairly similar, with the other elements of the doctrine being the restricting factor of the test. For example, the doctrine of common intention and its counterpart for implied reservation may use the ‘necessity’ element of their corresponding tests in the same way i.e. the easement must be necessary to fulfil the

common intention of the parties to the sale. Regardless of this, it is clear that what is necessary for a claimant under one doctrine may not be under another, despite the objective nature of the tests. Consequentially, it is challenging to discern with any real clarity the meaning of necessity. What will constitute necessity for one test will fall short in another. This mal-clarification is particularly detrimental to the law of implied easements due to the overlapping nature of the tests as identified by the Law Commission.29 Wong30 illustrates this over-lap of tests. The wording of both Lord Denning31 and Pearson LJ32 refer to the easement as arising under the doctrine of

28

Broomfield v Williams [1897] 1 Ch. 602.

29

The overlap of the tests is acknowledged by the Law Com No 327, paras 3.26 and 3.31.

Wong (n 14).

31 Ibid, 178.

32 Ibid, 183; Pearson LJ states: ‘This case affords a good example of an easement of necessity.’

30

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necessity; however, the case has been subsequently cited as authority for the test of common intention.33

Logic seems to fail when attempting to justify the outcomes of some cases on this topic. For example, a claimant may meet the requirements of necessity under

Wheeldon v Burrows34 only to find they have failed to qualify for its largesse. Instead, they may conclude that the only doctrine available to them is that of strict necessity under which they will find no implication of any merely useful or convenient easements. In other words, a claimantâ&#x20AC;&#x2122;s necessity may fall at the wrong end of the spectrum for the implication of their easement. This exact scenario occurred in MRA

Engineering Ltd v Trimster Co Ltd35 where a seller of land did not occupy the land before the sale. For this reason, the court did not imply an easement of vehicular access. The land in question was leased at the time of the sale and, it is arguable that if the seller had been in occupation, the easement would have been implied as

Wheeldonâ&#x20AC;&#x2122;s criteria would have been satisfied. Unfortunately, strict necessity decrees vehicular rights of access to be unnecessary when the land is accessible by footpath so this doctrine also failed for the claimant. Such cases may vary in outcome from fair to unfair, logical to obtuse and undoubtedly the granting of easements must be restricted due to the value they can potentially deduct from the servient land. The

33

An example of this can be found in Donovan (n 15) at [24].

Wheeldon (n 8).

35 MRA Engineering Ltd v Trimster Co Ltd (1988) 56 P & CR 1 (CA).

34

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trouble is, there must be clarity; and in an area of law where the same word has so many interpretations, this is not possible.

As mentioned above, this article advocates the reforms suggested by the Law Commission. Although the reforms would change the law from a plethora of intention based tests to a single test of reasonable necessity, as this article has demonstrated, necessity is already a prominent component for the implication of an easement. It would thus seem the logical step to reduce the colourful necessity spectrum to single shade of objective necessity that can be applied evenly to all claimants.

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Bibliography Books Burn EH and Cartwright J, Cheshire and Burns Modern Law of Real Property (18th edn, OUP 2011).

Davis M, Land Law, (8th edn, Palgrave Macmillan, 2013).

Gaunt J R, Morgan P, ‘Gale on Easements’ (19th edn, Sweet & Maxwell 2012).

Jackson N, Gateway to Land Law (1st edn, Sweet & Maxwell 2012).

Sara C, ‘Boundaries and Easements’ (6th Edn, Sweet and Maxwell 2015).

Journal Articles Douglas S, ‘Reforming Implied Easements’ [2015] 131 LQR 251.

Reports Law Commission, Making Land Work: Easements, Covenants and Profits a Prendre (Law Com No 327, 2011).

Law Commission, Easements, Covenants and Profits a Prendre (Law Com CP No 186, 2008).

Cases Adealon International Property Ltd v Merton LBC [2006] EWHC 1075; [2006] 2 P. & C.R. DG13.

Broomfield v Williams [1897] 1 Ch. 602.

Donovan v Rana [2014] EWCA Civ 99; [2014] 1 P & CR 23 (CA).

Manjang v Drammeh (1990) 61 P & CR 194.

Millman v Ellis (1996) 71 P & CR 158.

MRA Engineering Ltd v Trimster Co Ltd (1988) 56 P & CR 1 (CA).

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Neill v Duke of Devonshire [1882] 8 App Cas 135 P&S Platt Ltd v Crouch [2002] EWHC 2195 (Ch); [2002] 45 EG 153.

Pwllbach Colliery Co Ltd v Woodman [1915] AC 634.

Re Webbâ&#x20AC;&#x2122;s Lease 1951 Ch. 808 Suffield v Brown (1864) 46 ER 888 (QB) Walby v Walby [2012] EWHC 3089 (Ch); [2013] 1 P & CR DG6, 14.

Wheeldon v Barrows (1879) 12 Ch. D 31 (CA).

Wong v Beaumont Property Trust Limited [1965] 1 QB 173.

Legislation Law of Property Act 1925.

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Brexit and Environmental Law

Maelya Maunick

Abstract

In the wake of the British vote to leave the European Union, this article addresses the implications of the resulting yes vote on environmental law. During the campaign, the referendum was presented as a straight forward ‘in’ or ‘out’ referendum. However, as it will be explained in the article, the outcome of the referendum was more complex.

Indeed, Brexit created many legal uncertainties steaming from the different exit options. The article will concentrate on the legal implications that Brexit would have on environmental law by focusing on two exit models: the Norwegian model as one and the possibility of leaving the EU and carrying on trade with the EU as a member of the World Trade Organisation as another.

Background

On 23 June 2016, British citizens voted in a referendum to leave the European Union (‘EU’). The British vote to exit the EU was termed ‘Brexit’. This referendum was promised

by David Cameron in his Bloomberg Speech on 23 January 2013. The referendum was referred to as ‘straight forward’ by David Cameron, in his speech on 22 of February 2016. However, as will be explained in this article, it is more complex. A vote in favour of Brexit creates many uncertainties because of the possible exit options and their legal

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implications, which none of the political parties have yet fully explored. This article will consider the legal implications of Brexit on environmental law.

Before analysing the probable legal implications of Brexit on environmental law, it is important to note that these will flow from the exit option chosen. There are many possible options in the case of Brexit,1 however, this article will only analyse two of them namely the Norwegian model the possibility of leaving the EU and carrying on trade with the EU as a member of the World Trade Organisation (‘WTO’).

The Norwegian Model

The Norwegian model consists of joining the European Economic Area (‘EEA’). EEA members benefit from the free movement of persons, goods, capital, and services,2 and are under an obligation to implement EU legislation concerning employment, competition, environment, and consumer protection.3 Since EEA members are not part of the European Customs Union, they are free to decide the rate of their own external tariffs and to trade with countries outside the EU.4 However, they are required, subject to the ‘rules of origin’, to participate in the EU’s duty-free zone5 and thus need to prove that a product comes from a free-trade area to qualify to trade in the duty-free

1

Jean-Claude Piris, ’If the UK votes to leave: The seven alternatives to EU membership’ (Centre for European Reform, 2016) <https://www.cer.org.uk/sites/default/files/pb_piris_brexit_12jan16.pdf> accessed 12 February 2016.

2 EFTA, ‘EEA Agreement (EFTA)’ <http://www.efta.int/eea/eea-agreement> accessed 17 January 2016.

3 Swati Dhingra and Thomas Sampson, ‘Life after BREXIT: What are the UK’s options outside the European Union’ (Centre for Economic Performance, 2016). <http://cep.lse.ac.uk/pubs/download/brexit01.pdf> accessed 19 February 2016.

4 Ibid.

5 EFTA, ‘Free Movement of Goods’, (EFTA, August 2014).

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market6. Furthermore, to benefit from the Single Market (‘SM’), Norway has to financially contribute to programmes in which it participates and to the EU’s Regional Development Funds.7 According to the House of Commons,8 Norway’s contribution to the EU budget represents only 17% less than the UK contribution.9 Another disadvantage is the anti-dumping measures that the EU can put into place to ensure that companies located in an EEA country do not sell their products to foreign countries at a lower price than in the SM.10 Thus, it appears that by joining the EEA the UK would recover some of its sovereignty while remaining in the SM and therefore retain the free movement of persons, goods, services and capital. However, the UK would have to relinquish all influence in the decision-making process, including how to regulate the SM. Consequently, the UK would lose more sovereignty than if it remained an EU member.

The WTO Only

The UK might decide to leave without any agreement with the EU, in which case, its trade relations would only be regulated by the WTO. This international organisation controls trade relations around the world between member nations.11 It is formed of

6

Europa, ‘Taxation and Custom Union’ (Europa). <http://ec.europa.eu/taxation_customs/customs/customs_duties/rules_origin/nonpreferential/article_410_en.htm> accessed 16 October 2015.

7 Europa, ‘European Regional Development Fund’ (Europa) <http://ec.europa.eu/regional_policy/en/funding/erdf/> accessed 08 December 2015.

8 House of Commons (2013), ‘Leaving the EU’, Research Paper 13/42, 1 July 2013.

9 Ibid, p22.

10 Piris (n 1).

11 World Trade Organisation, ‘Who we are’ (World Trade Organisation) <https://www.wto.org/english/thewto_e/whatis_e/who_we_are_e.htm> accessed 19 November 2015.

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162 members12 including the UK, which joined in 1948.13 Under the WTO rules, the UK is bound by the principle of the ‘Most Favoured Nation’ (‘MFN’) which establishes that WTO members cannot discriminate between WTO trading parties.14 If the UK grants a special favour to another WTO nation, it is under the obligation to grant this same favour to every WTO member, unless it is also part of a group that set up free trade agreements.15 This obligation might create a rise in the cost of UK exports to the EU which could reduce access of the European Market.16 However, as the UK would no longer be part of the SM, it would no longer be bound by the rules regulating the SM. It would be free to set its own external tariff and trade with countries of its own choosing. Moreover, the UK would no longer be bound by judgements of the Court of Justice of the European Union (‘CJEU’) or by the EU directives, unless it decided to retain them. Treaties and regulations would also cease to apply to the UK.

Another factor accompanying Brexit would be that the UK would no longer benefit from the free movement of persons.17 This might jeopardise UK nationals currently working in the EU and reduce the number of UK travellers in the Union as they would

12

World Trade Organisation, ‘Members and Observers’ (World Trade Organisation) <https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm> accessed 19 November 2015.

13 Ibid.

14 World Trade Organisation, ‘Principles of the trading system’ (World Trade Organisation) <https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm> accessed 19 November 15.

15 Ibid.

16 Swati Dhingra, Thomas Sampson, ‘Life after BREXIT: What are the UK’s options outside the European Union’ (Centre for Economic Performance, 2016) <http://cep.lse.ac.uk/pubs/download/brexit01.pdf> accessed 19 February 2016.

17 Piris (n 1)

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need a visa in order to visit or remain in the EU.18 With regard to the free movement of capital, the UK would not suffer from the loss of this right as the EU prohibits its Member States from restricting the flow of capital19.

Leaving the EU to only be bound by the WTO would permit the UK to fully recover its sovereignty. On the other hand, as the UK would no longer be part of the SM and the European Customs Union, it would lose the free movement of persons, services and goods along with its economic integration. Thus, leaving the EU and continuing trade with the EU as a WTO member, will arguably have a great impact on UK political sovereignty. It may also have a detrimental effect on the UK’s economy20 and give rise to massive expenditure in having to reformulate the law.21

History

Historically in the UK, environmental law has mainly been used to control public health rather than the environment.22 Prior to EU membership, the UK was called ‘the Dirty Man of Europe’ due to its ‘dilute and disperse’ approach to pollution and its sulphur dioxide emissions, one of the highest in Europe in 1980.23 Furthermore, even if

18

Jon Henley, ‘Rush for dual-nationality passports as EU migrants fear Brexit’ (The Guardian, Monday 17 August 2015), <http://www.theguardian.com/politics/2015/aug/17/dual-nationality-passports-eumigrants-fear-brexit-european-union-referendum> accessed 17 December 2016.

19 Treaty on the Functioning of the European Union (‘TFEU’), Article 63.

20 PwC, ‘Leaving the EU: Implications for the UK economy’ (PwC, March 2016) <http://www.pwc.co.uk/economic-services/assets/leaving-the-eu-implications-for-the-ukeconomy.pdf> accessed 30 March 2016.

21 Henley (n 17).

22 Stuart Bell, Donald McGillivray, Ole W. Pedersen, Environmental Law (8th Edn, OUP 2013).

23 Vigdis Vestreng et al, ‘Twenty-five years of SO2 emission reduction in Europe’ (Atmospheric Chemistry and Physics, 12 July 2007) p3368 <http://www.atmos-chem-phys.org/7/3663/2007/acp-7-36632007.pdf> accessed 30 September 2016.

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legislation had been implemented it would have introduced very low targets which, if breached, would have resulted in no legal action. This is because instead of giving powers to centralised authorities to enforce the law, the Government gave the power to public bodies.24 Subsequently, when EU environmental law started to develop, it transformed the UK’s environmental law by introducing centralised bodies of laws, realistic targets and most importantly a judicial body and process in order for Member States to strictly respect and implement EU laws.

The EU and Environmental Law

The EU has played a vital role in the development of environmental law, transforming it into a real legal instrument, instead of being a political tool. The role of environmental law in the EU is ‘to preserve, protect and improve the quality of the environment and to protect human health. It also focuses on the careful and rational use of natural resources and contributes to promoting […] measures intended to combat regional or global environmental problems’.25 It is a crucial area of law due to the transboundary and global nature of environmental issues (climate change, marine environment, and air quality).

The most important principle of EU environmental policy is the ‘Polluter Pays Principle’, under which Member States must take responsibility for their actions and pay for the

24 25

Bell (n 22).

TFEU Article 191.

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pollution they produce.26 Being part of the EU has given Member States the opportunity to work in groups, in order to achieve greater and common objectives while sharing costs, benefits and resources (technology, scientific discoveries, and reports). Although EU environmental law has been greatly criticised27 28 over the years, it is argued that ‘EU membership has led to a cleaner and healthier UK environment’29 and that the EU environmental policy is the greatest in the world.30 The UK has proven itself to be a good ally with regard to environmental law, providing scientific recommendations as well as policy recommendations.31 The likely consequences of leaving the EU on the UK’s environmental policy are uncertain and vary considerably depending on which Brexit option will be negotiated.

Leaving the EU under the Norwegian model

Article 73 of the EEA agreement mirrors Article 191 of the Treaty on the Functioning of the European Union (‘TFEU’) when defining environmental law, and most of the EU’s

26

Bob Ward and Naomi Hicks, ‘What is the polluter pays principle?’ (The London School of Economics and Political Science, 17 February 2014) <http://www.lse.ac.uk/GranthamInstitute/faqs/what-is-the-

polluter-pays-principle/> accessed 20 January 2016.

Emma Lui, ‘Brexit: make or break for environmental law?’ (LexisNexis, 2015) <http://blogs.lexisnexis.co.uk/purposebuilt/brexit-make-or-break-for-environmental-law/> accessed 01 March 2016.

28 Institute for European Environmental Policy, ‘Report on the influence of EU policies on the environment’ (Friend of Earth, August 2013). <https://www.foe.co.uk/sites/default/files/downloads/report-influence-eu-policies-environment93922.pdf> accessed 29 February 2016.

29 Charlotte Burns,’The implications for UK Environmental policy of a Vote to Exit EU’ (Friends of the <https://www.foe.co.uk/sites/default/files/downloads/eu_referendum_environment.pdf> Earth) accessed 29 February 16.

30 Andrew Jordan, The Environmental case for Europe: Britain’s European environmental policy, (CSERGE Working Paper EDM 06-11).

31 House of Commons, Exiting the EU: impact in key UK policy areas (Briefing Paper No 07213, 12 February 2016).

27

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legislation with regard to environmental law is incorporated in the EEA agreement32 apart from the Habitats Directive,33 the Birds Directive34 and the Bathing Water Directive.35

Leaving the EU and joining the EEA does not mean that the UK would have to repeal all those directives, as some of them have been implemented into UK national law. For example, the Habitat Directive was implemented through the Conservation (Natural Habitats, &c.) Regulation 1994. However, the degree to which the UK would withdraw from those remains unclear.

EU Directives

The Habitats Directive and Birds Directive are the most important EU directives concerned with biodiversity.36 They created the Natura 2000 network comprising the Special Areas of Conservation (‘SAC’) and the Special Protection Areas (‘SPA’). Under these directives, Member States must ensure that these areas are appropriately managed and protected. Additionally, if a project is in contemplation (e.g. construction of a new railway network), Member States must ensure that it will have no impact on the SAC or SPA.37 Otherwise, Member States must undertake compensatory mitigating

32

EEA agreement, Annex XX– general.

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L 206/7.

34 European Parliament and Council Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds [2009] OJL 20/7.

35 Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water [1975] OJL 31/7.

36 David Baldock et al, ‘The potential policy and environmental consequences for the UK of a departure from the European Union’ [2016] Institute for European Environmental Policy.

37 Commons (n 31).

33

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measures before being able to proceed with the project38 unless there are ‘imperative reasons of overriding public interest’.39 The UK is also a party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. However, this agreement is only concerned with commercial trade, not national protection and would therefore not replace the role that the EU plays in protecting national species.

The UK would, however, still be bound by the Bern Convention, which is a legally binding international instrument to protect the natural heritage across the European continent. The only down side of the Bern Convention is that it is not as stringent as EU environmental legislation because it does not have the same level of power as the EU to enforce its requirements.40 Consequently, leaving the EU is likely to mean that the UK would, under the EEA agreement, be free to relax the conditions with regard to the SAC and SPA, for example, the requirement for ‘imperative reasons of overriding public interest’ and the associated compensatory mitigating measures might be removed. Moreover, the UK would be able to draft a new, less comprehensive, list of protected species taking into consideration only the ones protected by the Bern Convention and the UN Convention on Migratory Species. This article submits that by leaving the EU, under the EEA agreement, the UK would lose more than it would gain as the UK has historically always been concerned with the protection of habitats and birds.41

38

Ibid.

Fauna and Flora (n 33) Article 6.

40 Baldock (n 36).

41 Commons (n 31).

39

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The Bathing Water Directive is also vital as its aim ‘is to preserve, protect and improve the quality of the environment and to protect human health’.42 To do so it requires Member States to monitor, manage and classify bathing water quality in order to inform the public43 on the risks of bathing in such waters. The EU radically changed the ‘dilute and disperse’ approach of the UK, which led to cleaner bathing waters and beaches.44 Under the EEA agreement, the UK would be able to depart from the EU requirements and delay any deadlines to meet targets. However, it seems unlikely that the UK would depart from the standards required by the EU as having cleaner beaches means attracting more tourists which is profitable for the national economy.45

Leaving the EU under the WTO Only

If the UK were to leave the EU entirely, it would not be bound by the EU legislation.

The environmental issue that are more likely to be adversely affected by Brexit are as follows are air quality, water quality and waste.

Before discussing these areas, it is important to note that the Single European Act46 has integrated part of EU environmental law into the rules governing the SM. This initiative aims to protect the environment while trading in a vast market by compelling

42

Bathing Water (n 35) Art 1.

Ibid.

44 Charlotte Burns, ‘The implications for UK Environmental policy of a Vote to Exit EU’ (Friends of Earth) <https://www.foe.co.uk/sites/default/files/downloads/eu_referendum_environment.pdf> accessed 29 February 2016.

45 Ibid.

46 Single European Act 1986.

43

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companies to abide by the same set of rules and, in doing so, avoid unfair competition.47 Therefore, if UK companies wished to continue to trade in the SM after Brexit, they would be obliged to comply with certain requirements.

Air Quality

Since the UK has become part of the EU, its air quality has significantly improved48 and the UK has observed a major decrease of pollutant emissions such as sulphur dioxide, nitrogen oxide and particulate matter (PM10 and PM2.5), which are recognised causes of cardiovascular disease and lung cancer.49

EU membership allows UK citizens to challenge the Government (including on environmental issues) either in national courts or in the CJEU. This was observed in R

(on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs.50 In this case, the Appellant, ClientEarth, claimed that the Respondent, the Secretary of State, had failed to fulfil its obligation under the Ambient Air Quality Directive.51 The UK has shown itself to be very reluctant in supporting the EU air quality

47

Institute for European Environmental Policy (n 36).

Department for Environment, Food & Rural Affairs, ‘Emissions of Air Pollutants in the UK, 1970 to 2014’ (Department for Environment, Food & Rural Affairs, 17 December 2015) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/486085/Emissions_o f_air_pollutants_statistical_release_2015_-_Final__2_.pdf> accessed 30 January 2016.

49 European Environmental Agency, ‘Air quality in Europe - 2013 report’, EEA Report No 9/2013.

50 R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28, [2012] EWCA Civ 897.

51 European Parliament and Council Directive 2008/50/EC of 21 May 2008 on ambient air quality and cleaner air for Europe [2008] OJL 152/1.

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programme, arguing that some objectives are either impossible to achieve52 or too costly.53 Thus, if the UK leaves the EU under the WTO only, any threat of fines due to non-compliance to EU environmental policy would disappear and the UK would be free to reduce its air quality standards and modify deadlines to comply with these.

Furthermore, it would create an opening for the UK to accept controversial projects such as the proposed expansion of Heathrow Airport54 which creates a significant risk to air quality. Both this debate and the ClientEarth case reinforce the idea that if the UK were to leave the EU entirely, this would be likely to create a threat to the environment and public health with regard to air quality.

The Water Directive

Water quality in the UK has greatly increased thanks to EU membership.55 The primary EU policies in this area are the Water Framework Directive,56 and the Urban Waste Water Treatment Directive.57 The former’s aim is to protect all natural waters from lakes to coastal waters, whilst the latter’s aim is to protect waters against the adverse effect

52

Jessica Shankleman, ‘Brexit' May Allow EU to Tighten Pollution Rules - Even in U.K.’ (Bloomberg, 29 February 2016) <http://www.bloomberg.com/news/articles/2016-02-29/-brexit-may-allow-eu-totighten-pollution-rules-even-in-u-k> accessed 19 March 2016.

53 Charlotte Burns, ‘The EU referendum and the Environment’ (Friends of the Earth) <https://www.foe.co.uk/sites/default/files/downloads/eu-referendum-environment-81600.pdf> accessed 29 February 2016.

54 Arthur Neslen, ‘Heathrow expansion risks deepening London's air pollution crisis’ (The Guardian, 1 July 2015) <http://www.theguardian.com/environment/2015/jul/01/heathrow-expansion-risksdeepening-londons-air-pollution-crisis> accessed 10 March 2016.

55 Burns (n 53).

56 European Parliament and Council Directive 2000/60/EC of the of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] OJL 327/1.

57 Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment [1991] OJL 135/40.

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of dispersing sewage into them. The UK is currently constructing the Thames Tideway Tunnel in response to the judgement of the CJEU, in 2012, which ruled that the UK had breached the Urban Waste Water Treatment Directive58 by frequently discharging sewage into the water. The aim of the tunnel is to significantly reduce the quantity of pollution dispersed into the river Thames for the next hundred years.59 If the UK left the EU entirely, the UK would still remain subject to certain guidelines from international organisations such as the World Health Organisation and International Organization for Standardization (‘ISO’). However, those organisations only provide guidelines which are not legally binding on States.60 Therefore, it would be at the discretion of the UK Government whether or not to follow those guidelines or to amend or repeal the implemented requirements which were set up by the EU. The UK would also no longer be required to publish reports about its water quality. However, in order to attract tourists, as explained earlier when discussing the Bathing Water Directive, the UK would not be able to completely depart from the requirements of the directives.

UK policy on waste is mainly controlled by The Waste (England and Wales) (Amendment) Regulations 2012 which implemented the Waste Framework Directive61 into UK national law. This directive sets out the legislative framework for the collection,

58 59

Commission v UK Case C-301/10.

Tideway, ‘The Tunnel’ (Tideway, last update 29.03.16) <http://www.tideway.london/the-

tunnel/?q=up2> accessed 4 April 2016.

David Baldock, ’The potential policy and environmental consequences for the UK of a departure from the European Union’ [2016] Institute for European Environmental Policy.

61 European Parliament and Council Directive 2008/98/EC of 19 November 2008 on waste and repealing certain Directives [2008] OJL 312/3.

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transportation, recovery and disposal of waste and requires Member States to take appropriate measures to encourage the prevention and reduction of waste production, and in so doing, promote recycling.

Waste

Prior to EU membership the UK’s approach to waste management was minimal. It consisted of the collecting and landfilling of waste resulting in a significant loss of resources. With this in mind, being part of the EU has had a positive impact. For example, in 2000, only 10% of UK households recycled compared to more than 43% in 2012.62 Due to the SM rules, it is assumed that most requirements concerned with waste would have to be fulfilled, even after Brexit. However, the main concern is whether the UK would meet targets, as the threat of being challenged legally would be removed in case of failure, and consequently the UK requirements could become less rigorous. The European Commission approved, in December 2015, a new Circular Economy Package with the aim to improve recycling and re-use techniques in Europe.

This new Package now needs to be discussed between the European Commission and the British Parliament, a process that might last from one to three years.63 As a result, it is uncertain whether this new package will be integrated into UK national law if the

62

Institute for European Environmental Policy (n 60).

House of Commons, ‘EU Circular Economy Package’ (parliament.uk, 21 December 2015) <http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7416> accessed 9 March 2016.

63

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UK leaves the EU entirely, and even if it is implemented, there is no certainty about whether or not the UK would decide to pursue it.

Conclusion

This article submits that the UK would continue to follow EU law anyway, either under the EEA or the WTO, so as to benefit from green tourism, which greatly contribute to the economy.64 The transboundary nature of environmental issues necessitates the alignment of the UK’s environmental policy to the EU’s.

In 50 years, the EU has shaped a set of environmental policies that have had a great impact on the environment across Europe and that are widely respected internationally. These environmental policies have not only been beneficial to the environment but also to citizens in terms of public health and businesses. If the UK joins the EEA, it will still be bound by most of the policies concerned with the environment without being able to influence the creation, formulation and amendment of those policies.

Due to the transboundary nature of environmental issues the UK might have to continue to follow EU measures concerning bathing waters, habitats and birds as it might be the one of the best solution to protect the UK environment. Subsequently, the UK would lose the advantage of working collectively within the Union and this

64

Centre for Responsible Travel, ‘The Case for Responsible Travel: Trends & Statistics 2015’ (CREST) <http://www.responsibletravel.org/resources/documents/2015%20Trends%20&%20Statistics_Final.pdf > accessed 12 March 2016.

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could result in environmental instability and confusion. Under the WTO, the UK Government would have discretion to follow, amend or repeal the implemented requirement of the EU.

Moreover, any threat of fine due to non-compliance with EU environmental policy will disappear and the UK would be free to reduce the air quality standards and modify deadlines to comply with these standards. Leaving the EU under this scenario could also have a detrimental effect on UK companies who wish to continue to trade in the SM. The companies would be obliged to comply with certain requirements that would not especially be part of national law. Outside membership of the EU and the requirements of its environmental policy, if the UK were to accept projects such as the proposed expansion of Heathrow Airport there could be a negative effect on air quality, and therefore on public health. Lastly, although the UK has membership in a number of international organisations who produce environmental policy guidelines, such as the WTO, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Bern Convention and the UN Convention on Migratory Species, it is uncertain whether or not the UK would decide to follow those guidelines.

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Bibliography

Books Bell S, Donald McGillivray, Ole W. Pedersen, Environmental Law, (8th edn, Oxford University Press 2013).

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House of Commons (2013), ‘Leaving the EU’, Research Paper 13/42, 1 July.

House of Commons (2016), ‘Exiting the EU: impact in key UK policy areas’, Briefing Paper No 07213, 12 February.

Jordan A, ‘The Environmental case for Europe: Britain’s European environmental policy, CSERGE Working Paper EDM 06-11.

Shankleman J, ‘Brexit' May Allow EU to Tighten Pollution Rules - Even in U.K.’(Bloomberg, 29 February 2016) <http://www.bloomberg.com/news/articles/2016-02-29/-brexit-may-allow-eu-totighten-pollution-rules-even-in-u-k> accessed 10 March 2016.

EFTA, ‘Free Movement of Goods’, August 2014.

Online Articles Burns C, ‘The EU referendum and the Environment’, (Friends of Earth) <https://www.foe.co.uk/sites/default/files/downloads/eu-referendum-environment81600.pdf> accessed 29 February 2016.

Burns C, ‘The implications for UK Environmental policy of a Vote to Exit EU’, (Friends of Earth) <https://www.foe.co.uk/sites/default/files/downloads/eu_referendum_environment.p df> accessed 29 February 2016.

Centre for Responsible Travel, The Case for Responsible Travel: Trends & Statistics 2015 (CREST) 48

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<http://www.responsibletravel.org/resources/documents/2015%20Trends%20&%20S tatistics_Final.pdf> accessed 12 March 2016.

Department for Environment, Food & Rural Affairs, ‘Emissions of Air Pollutants in the UK, 1970 to 2014’ (Department for Environment, Food & Rural Affairs, 17 December 2015). <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/48 6085/Emissions_of_air_pollutants_statistical_release_2015_-_Final__2_.pdf> accessed 30 January 2016.

Dhingra S, Thomas Sampson, “Life after BREXIT: What are the UK’s options outside the European Union” (Centre for Economic Performance, 2016) <http://cep.lse.ac.uk/pubs/download/brexit01.pdf> accessed 19 February 2016.

EFTA, EEA Agreement (EFTA) <http://www.efta.int/eea/eea-agreement> accessed 17 January 2016.

Europa, ‘European Regional Development Fund’ (Europa) <http://ec.europa.eu/regional_policy/en/funding/erdf/> accessed 08 December 2015.

Europa, ‘Taxation and Custom Union’ (Europa) <http://ec.europa.eu/taxation_customs/customs/customs_duties/rules_origin/nonpreferential/article_410_en.htm> accessed 16 October 2015.

European Environmental Agency, ‘Air quality in Europe - 2013 report’, EEA Report No 9/2013.

Henley J, ‘Rush for dual-nationality passports as EU migrants fear Brexit’, The Guardian (Monday 17 August 2015), <http://www.theguardian.com/politics/2015/aug/17/dual-nationality-passports-eumigrants-fear-brexit-european-union-referendum> accessed 17 December 2015.

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Institute for European Environmental Policy (2016), ‘The potential policy and environmental consequences for the UK of a departure from the European Union’, March.

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Lui E, ‘Brexit: make or break for environmental law?’ (LexisNexis, 17 December 2015) <http://blogs.lexisnexis.co.uk/purposebuilt/brexit-make-or-break-for-environmentallaw/> accessed 01 March 2016.

Neslen A, ‘Heathrow expansion risks deepening London's air pollution crisis’, The Guardian (1 July 2015) <http://www.theguardian.com/environment/2015/jul/01/heathrow-expansion-risksdeepening-londons-air-pollution-crisis> accessed 10 March 2016.

Piris JC, ‘If the UK votes to leave: The seven alternatives to EU membership’ (Centre for European reform, January 2016) <https://www.cer.org.uk/sites/default/files/pb_piris_brexit_12jan16.pdf> accessed 12 February 2016.

PwC, ‘Leaving the EU: Implications for the UK economy’ (PwC, March 2016) <http://www.pwc.co.uk/economic-services/assets/leaving-the-eu-implications-forthe-uk-economy.pdf> accessed 30 March 2016.

Tideway, ‘The Tunnel’ (Tideway, last update 29 March 2016) <http://www.tideway.london/the-tunnel/?q=up2> accessed 4 April 2016.

V. Vestreng et al, ‘Twenty-five years of SO2 emission reduction in Europe’ (Atmospheric Chemistry and Physics, 12 July 2007) <http://www.atmos-chemphys.org/7/3663/2007/acp-7-3663-2007.pdf p3368> accessed 30 September 2016.

Ward B and Hicks N, ‘What is the polluter pays principle?’, (The London School of Economics and Political Science, 17 February 2014) <http://www.lse.ac.uk/GranthamInstitute/faqs/what-is-the-polluter-pays-principle/> accessed 20 January 2016.

World Trade Organisation, ‘Members and Observers’ (World Trade Organisation) <https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.html> accessed 19 November 2015.

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International Sources and Treaties European Economic Area Agreement, Annex XX– general.

European Parliament and Council Directive 2008/98/EC of 19 November 2008 on waste and repealing certain Directives [2008] OJL 312/3.

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European Parliament and Council Directive 2000/60/EC of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] OJL 327/1.

European Parliament and Council Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds [2009] OJL 20/7.

Treaty on the Functioning of the European Union.

Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water [1975] OJL 31/7.

Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water, Article 1.

Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment [1991] OJL 135/40.

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L 206/7, Article 6.

European Parliament and Council Directive 2008/50/EC of 21 May 2008 on ambient air quality and cleaner air for Europe [2008] OJL 152/1.

Cases C-301/10 Commission v UK Case.

R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28, [2012] EWCA Civ 897.

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Same Sex Marriage: Legal Progression or Appeasement of the Masses?

Clara Sibanda

Abstract

The issue of same sex marriage is a complex one to examine particularly when one considers that homosexuality has only been legal for forty-nine years. The fight to achieve equality in respect of same sex couples being permitted to marry has been long, slow and, as this article will demonstrate, has not yielded the desired result.

Although same sex couples can now marry, their version of marriage is not equal to that of heterosexual couples. Key elements, such as consummation and adultery have been omitted in the new statute ((Marriage (Same Sex Couples) Act 2013)) and that, amongst other issues presented by the Act, illustrates discrimination against the LGBTQ community. This article considers only adultery and consummation in some detail but simultaneously alludes to the vexatious nature of the clause that allows certain religions to refuse to officiate same sex marriages. It is argued that religion has a strong influence in the development of this area of law and that this influence is out of line with its use. This is evident when one examines the diverse society in which we live, rich with a multitude of religions juxta positioned beside agnostics and atheists.

What plausible justification is there to impose a belief on non-believers in this context?

This essay suggests that there is none. With regards to same sex marriage, the battle may be won but the war against inequality still looms. As long as adultery and

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consummation (and other elements omitted in this discussion) exist but do not apply to same sex marriage as they do to heterosexual marriage, equality does not exist.

Instead, what does exist is some legal progression and appeasement for those who petitioned for change.

Introduction

With the passing of Pride Week 2016, it is certainly arguable that the celebration and indeed the movement have gathered momentum since the passing of the Marriage (Same Sex Couples) Act 2013 (‘MSSCA’). July 2013 marked a considerable turning point in the law’s acceptance of same sex couples, granting them the marriage that their heterosexual counterparts had been allowed since time immemorial. From the legalisation of homosexuality in 1967 to the first same sex marriage (‘SSM’) in the UK on 29 March 2014, it took a painfully long time for homosexual couples to be granted the ‘equality’ that they had arguably been denied. Yet, the question does arise as to whether or not equality was achieved in enacting the MSSCA. Does it confer the right of marriage to same sex couples across the UK? Yes. Does it achieve equality in doing so? Arguably, no. Aside from the fact that the Church of England is prohibited from performing SSM ceremonies, the two elements that accompany marriage as society understands it, namely consummation and adultery, are absent under the Act. The origins of such attitudes as well as those of the law are firmly rooted in religion - albeit to a lesser extent now than in the past. Today’s perceptions of adultery, consummation and SSM vary but the majority of dissent carries conservative religious overtones. It

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should be noted that this article does not argue that religions should conform to a law that contradicts their doctrines but mentions it here only as part of a list of issues from which complaints of discrimination often arise. Whether or not such discrimination is found to exist is an entirely different issue. Often, religion is the main reason used in the defence of omitting consummation and adultery, but how valid an excuse is it?

The Origins of a Heteronormative Society in Brief

The position of Christianity, which is maintained by the Church of England to this day, accords that marriage is sacrosanct between man and woman. Of course, religion is not tantamount to law. It plays some role in the making and development of law because policy makers in the House of Lords include senior bishops and other members of predominantly Christian backgrounds. However, other factors must also be taken into consideration such as the progression of society, constitutional correctness and human rights. Looking at SSM, the majority of objections against it were and are founded on religion and this highlights the role of religion in law. A detailed discussion on the pros and cons of religion guiding the law is beyond the scope of this article. However, we live in a diverse society. It is worth noting that the dichotomy between the beliefs of say, atheists and Christians could not further divide them. As such, maintaining positions on adultery and consummation derived from religion and enforcing it against a non-Christian populace would seem to be somewhat counterintuitive.

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Looking first at arguments made against SSM, a common theme brought up first by Jackson was that the MSSCA did nothing to promote the ideals of equality and longevity in marriage.1 This point can be considered from both a religious and a nonreligious standpoint. With regards the former, according to many religions marriage is between a man and woman and so in this context, allowing same sex couples to wed displaces the idea that people have lived by since time immemorial. It is Jackson as well as Lord Carey’s2 argument that the equality that the Act claims to bring is not legitimate, particularly noting that the requirements for consummation and adultery are excluded. This exemplifies a dilution of the definition of marriage by excluding key components of what marriage truly consists of and this is what this paper seeks to highlight.

Arguments in favour of SSM included that despite the fact that the ‘canon law of the

established Church of England is part of the law of the land’,3 religion should not be an excuse to deny people their rights. Religion holds a fundamental importance but not one superior to human rights and all other factors in consideration. Also, other religions including Quakers and Liberal Jews wanted to opt-in and conduct SSMs and this was a factor that demanded as much respect as the Orthodox Church of England opting out of such affairs.

1

Marriage (Same Sex Couples) Bill Deb 5 February 2013, col 125.

Ibid.

3 Ibid, col 130.

2

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There was support for the Bill in a manner incident to support for the redefinition of marriage. Proponents of the Bill were adamant that SSM enhanced the idea of family and harmony without the need for children. This is something that has become a norm even in heterosexual relationships with a reported increase in women not having children at all.4 SSM would, if anything, normalise this trend and this can to an extent be seen as a rare example of the law progressing to meet society’s ever changing norms, notably one that offsets the ‘go forth and multiply’ standard of religion.

The addition of the arguments that have naught to do with religion emphasised that while religion is important, there are often other factors in law to examine such as human rights, equality and morality. Despite all objection, religious or otherwise, the Act came into force but still lacked the contentious essentials of adultery and consummation. Arguably, this removed the requirement of fidelity from the relationship because whereas heterosexual couples may divorce on the grounds of adultery, same sex couples cannot because the definition of the sexual relations by which adultery arises is vaginal penetration with a penis.5 This is a sensitive point because having the option of adultery in divorce has not led to a decrease or eradication of adultery based divorces.6 The definition of marriage may have been altered. However, aspects of marriage (i.e. consummation and adultery) have not been

4

ONS, ‘Around one fifth of women are childless at age 45’ (national archives, 05 December 2013) <http://webarchive.nationalarchives.gov.uk/20160105160709/http://www.ons.gov.uk/ons/rel/fertilityanalysis/cohort-fertility--england-and-wales/2012/sty-cohert-fertility.html> accessed 9 March 2016.

5 Baxter v Baxter [1947] 2 All ER 886.

6 Thomas Duggins, ‘Adultery and the same-sex marriage bill’ (The Spectator, 13 February 2013) <http://blogs.spectator.co.uk/2013/02/adultery-and-the-same-sex-marriage-bill/> accessed 19 March 16.

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changed accordingly. These are not the only legal elements attached to the institution of marriage; however, they are the components pertinent to this article.

The definition of consummation involves sexual relations as well as ‘emission of seed’7 and as will be explored in more detail below, this discriminates against same sex couples, in particular, lesbians. It is also worth noting that Matrimonial Causes Act provides no definition (nor for adultery), making it trickier for Parliament to redefine it. However, difficulty is not coterminous with impossibility, although it appears to have led to a reluctance on the part of the legislator to move on and embrace reform. It is the contention of this paper that immediate reform in respect of the definitions of consummation and adultery is necessary.

The definition of adultery relied on in the UK is consistent with the meaning of marriage that applied in 1952 which was affirmed in Abson v Abson.8 At the time, the law occupied a position that was synonymous with religion, particularly with respect to adultery and homosexuality. This ecclesiastic stance can be traced back to many verses in the Holy Bible. The Book of Leviticus prescribed death for ‘a man who lies

with mankind as he lieth with a woman,’9 referring to both as having ‘committed an abomination.’10 The focus of the Canon Law of England was undermining the marriage vow; therefore, all married parties sexually engaged with a married party were guilty of undermining the vow and committing adultery. With regards to adultery involving

7

W v W [2001] 1 A.C. 596.

Abson v Abson [1952] P. 55.

8 9

The Holy Bible, (King James Version), Leviticus 20:13.

Ibid.

10

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same sex couples, the law was consistent with the notions distinguishing between adultery and buggery. The former was tortious whilst the latter was criminal. It was abolished and homosexuality was legalised in 1967, following the recommendations set forth by the Wolfenden Report.11 Since then, SSM has been introduced but for the purposes of equality, it has changed little apart from granting same sex couples the right of marriage.

The Inequity of the MSSCA

While adultery is a somewhat antiquated concept, to deprive one married couple of it because of sexual orientation undermines the ‘equality’ that SSM purports to stand for. It has been said that ‘the Courts have gone into the minutia of the process; if they

can define it in one way then they can certainly find a mechanism to define it in another way that does fit same-sex couples.’12 This is true because as the definition of marriage has undergone a rewording, it is arguable that so should those of all related factors.

Reform in this area would not only demonstrate a reconciliation of the legal privileges and moral obligations of married heterosexual and homosexual couples, but also clearly evince the law’s ability to evolve and complement present day views on sexual relationships and infidelity. To leave it as it is would be to affirm the heteronormative stance that the law currently employs and blight equality. The issues raised in this essay

11

Great Britain, The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution. (New York: Stein and Day, 1963).

12 Jennifer Tracey and Rebecca Smith, ‘Why there’s no such thing as gay adultery in UK law’ (BBC News, 1 August 2015) <http://www.bbc.co.uk/news/magazine-33718943> accessed 19 March 16.

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ought to be examined by the legislature in ‘common parlance’13 in the clear reality of the 21st century and not in a manner clouded by biblical anecdotes or outdated and redundant attitudes.

It is not just in the UK that divorce statute retains this outmoded stance. In the case of

Blanchflower,14 the New Hampshire Supreme Court adhered to the 1842 statute15 as well as the definitions attributed to adultery in State v Wallace16 and State v Taylor.17 The UK legislation only dates back to 1973 but society has greatly evolved since then.

Transsexuals ‘self-designated gender’ has garnered legal status18 and in 2004, buggery and gross indecency were abolished.19 These are 2 of many historic changes in the UK made in alignment with society’s progression and evolution, yet the concepts of adultery and consummation remain stagnant.

In their dissenting judgements in Blanchflower, Brock C J and Broderick J noted that to maintain the old definition was to ‘contravene the legislature’s intended purpose in

sanctioning fault-based divorce for the protection of the injured spouse’20 and it would be equal to averting ‘one’s eyes from the sexual realities of our world’.21 This is the uncompromising and debatably discriminatory position that English laws have

13

Baxter v Baxter [1948] AC 274.

In the Matter of Blanchflower 150 N.H. 226, 834 A.2d 1010 (2003).

15 WND, ‘Court: Homosexual sex not adultery’ (world net 14

daily, 11 August 2003) <http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=35496> accessed 19 March 16.

16 State v Wallace 2013-Ohio-2871.

17 State v Taylor 58 N.H. 331 (N.H. 1878).

18 Pat Thane, ‘Unequal Britain: equalities in Britain since 1945’ <http://www.historyandpolicy.org/policypapers/papers/unequal-britain-equalities-in-britain-since-1945> accessed 19 March 16.

19 ibid.

20 Blanchflower (n 14).

21 Ibid.

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adopted. The resulting status quo trivialises same-sex relations and violates modern notions of the sanctity of marriage weakening the argument that SSM is responsible for the corrosion of the ideals of marriage because the old laws relied on are guilty of the same.

One could argue that the intrinsically religious legal components have remained untouched courtesy of religionâ&#x20AC;&#x2122;s influence. However, at present, such a statement is as plausible as making a similar statement about the invalidity of homosexual relationships prior to 1967. Today, religion does not hold the power that it once did and, as has already been alluded to, there are other factors that could bring about change in this arena. Eventually societyâ&#x20AC;&#x2122;s perception on the topic progressed to one that was previously unthinkable and this could very well be the case for the future of adultery and consummation in homosexual marriages. After all, if there is an age of consent for homosexual activity, why is there no element of adultery or even consummation? Consent is for sexual activity that although not limited to, can include sexual intercourse. If homosexual couples can consent to sexual activity possibly including sexual intercourse (in its redefined sense) then shouldnâ&#x20AC;&#x2122;t the law cater for the possibility of homosexual adultery? Surely one follows the other? The essence of the activity that requires consent is the same as that which heterosexual couples use to obtain a divorce on the basis of adultery.

The Ashley Madison scandal demonstrates that there should be no distinction between homosexual and heterosexual activity. Ashley Madison was, as dating service standards

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go, the discreet and popular doyen of dating sites catering in particular to people in committed relationships looking to enter extramarital affairs.22 The trouble arose after a series of privacy breaches. Some of the victims of the exposure had previously deleted their accounts. They therefore expected, quite reasonably, to have been automatically disassociated with the service. The hacking was perpetrated by a group who referred to themselves as the ‘Impact Team’ and resulted in a multi-state class action against Avid Life Media - Ashley Madison’s parent company.23 Some 36 million users were exposed including heterosexual users with homosexual tendencies and members of the LGBTQ community.

24

There was no differentiation between

‘homosexual relationships or sex’25 and heterosexual relationships or sex. The latter adulterers would suffer almost as much as the former. This is an important point which, as will be shown, illustrates both the irrelevance and the danger of the distinction.

Dealing first with the irrelevance; in mentioning the adultery factor,26 no discernment was made between the extramarital habits of heterosexual users with homosexual partners and heterosexual users with heterosexual ‘lovers’.27 Much of the furore caused

22

The Ashley Madison Agency, ‘Hollywood Courts Toronto-based Ashley Madison’ (PR Newswire, 30 November 2004) <www.prnewswire.com/news-releases/hollywood-courts-toronto-based-ashleymadison-75587257.html> accessed 11 August 2016.

23 Alyssa Newcomb, ‘Ashley Madison Hack: How the Legal Case Is Shaping Up’ (ABC News, 25 August 2015) <http://abcnews.go.com/Technology/ashley-madison-hack-legal-caseshaping/story?id=33303872> accessed 11 August 2016.

24 Mary Emily O’Hara, ‘The Ashley Madison hack is outing LGBT people worldwide’ (The Daily Dot, 20 August 2015) <http://www.dailydot.com/irl/gay-ashley-madison-hack-safety/> accessed 11 August 2016.

25 Ibid.

26 Ibid.

27 Natasha Noman, ‘The Dark Side of the Ashley Madison Hack That Nobody's Talking About’ (News Mic, 20 August 2015) <https://mic.com/articles/124169/the-ashley-madison-hack-could-effect-thosewho-live-in-country#.RMmhsgkMh> accessed 11 August 2016.

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by the hacking was a result of the invasion of privacy and not necessarily the bedroom antics of the exposed.

An important take away from the Ashley Madison saga is that the public perception in most nations (excluding perhaps those in which adultery and homosexuality are illegal) is that differentiation between homosexual and heterosexual conduct does not seem relevant and if anything, the greater issue here was the breach of privacy and not the illicit details of peoples’ sex lives. This notion was enforced by US District Judge John A. Ross’s rulings on the case, which focused on the inability of plaintiffs to utilise pseudonyms and the defendant’s right to retain original documents unless proper discovery was required.28 That said, much of the narrative surrounding the repercussions i.e. suicides, divorces, deaths and shaming does not seem to differentiate between the homosexual and heterosexual victims, viewing all has having suffered and inferably, unjustly.

Aside from being arguably irrelevant, legal distinction between the acts of homosexuals and heterosexuals has had negative outcomes for nationals of certain Islamic countries where homosexuality and adultery are illegal.29 Sharia Law is the ‘moral code and religious law of Islam’30 with questionable human rights practices and

28

Legal Schnauzer, ‘Federal judge overseeing lawsuits against Ashley Madison says hacked data from extramarital-affair Web site will be kept out of courtroom proceedings’ (Legal Schnauzer, 13 May 2015)<http://legalschnauzer.blogspot.co.uk/2016/05/federal-judge-overseeing-lawsuits.html> accessed 27 August 2016.

29 Blanchflower (n 14).

30 Olaide Abbas Gbadomosi, ‘Inter-section between Shari’a and Reproductive and/or Sexual Health and Human Rights’ (austlii) <http://www.austlii.edu.au/au/journals/UWALawRw/2012/2.pdf> accessed 07 September 2016.

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omissions. With regards to homosexuality, Saudi Arabia is Sharia Law compliant and as such, its outlook on the topic matches that of the religion. The Quran’s Surah entitled ‘Al Qamar’ or ‘The Moon’ describes the punishment given to a sinfully homosexual nation in biblical times as sending ‘upon them a storm of stones.’31 While Saudi Arabia does not have a penal code legislating for this area, homophobic practices and beliefs are promoted by the Hadith, scholars and Muslim leaders. The penalties vary from stoning to whipping but in respect of human rights, regardless of their religious origins, they are violations of the same.

Taking further the argument against such distinction, Goodman opines that ‘[i]f sexual fidelity is central to heterosexual marriages it should be central to any and all marriages’.32 This is further supported by Baroness Butler-Sloss who suggested that adultery is a fundamental betrayal against anyone with whom the adulterer had made a marriage commitment and that the use of ‘unreasonable behaviour’ as a grounds for divorce was erroneous and that the law had not caught up to all the sexual relationships that exist in modern society. But is the ponderous development of the law sufficient justification for the uneven treatment that same sex couples are subject to? Butler-Sloss refers to the law’s acknowledgement of a man being raped33 and questions why the same recognition could not be given in family law. Arguably, had this been the case, then the redefinition of adultery and consummation would have

31

The Qur’an, Al-Qamar 54:34.

Marriage (Same Sex Couples) Bill Deb 5 February 2013, col 178.

33 Sexual Offences Act 2003 s 1 (1).

32

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been a more straightforward affair. She declared her findings to be ‘a mockery of the

so-called equality that is the bedrock of this Bill’34 (the MSSCA). Similarly, these were the findings of the Office of the Attorney General of Maryland in an attempt to answer the question of ‘[w]hether same-sex marital infidelity can qualify as adultery for

purposes of family law provisions governing divorce’.35

The Maryland Alternative

Adultery is ‘a flagrant breach of the marriage vow’36 which breach is just as ‘devastating’37 regardless of whether it was occasioned by a same-sex partner or not.

The case of Schadegg38 highlights the fact that the trust violated by extramarital homosexual affairs was the same as that violated by extramarital heterosexual affairs and to state otherwise would be to regard the homosexual victim insensitively and unfairly. Although this reasoning was reached through the use of American norms, laws and cases, it is easily transferrable to the laws of England and Wales where, as in the USA, ‘marriage equality is the law of the land.’39 Having acknowledged the concept of ‘marriage equality’ it follows that where opposite sex couples are capable of adultery (and consummation) and same sex couples are not, true equality does not exist. The

34

Marriage (Same Sex Couples) Bill - Schedule 4: Effect of Extension of Marriage. Further Provision, Amendment 40, col 376.

35 Adam D. Snyder, ‘Divorce – Whether Same-Sex Marital Infidelity Can Qualify As Adultery For Purposes Of Family Law Provisions Governing Divorce’ (Family Law) <https://www.oag.state.md.us/Opinions/2015/100OAG105.pdf> accessed 06 September 2016.

36 Ridgley v Ridgley 79 Md. 298, 301 (1894).

37 SB v SJB 258 N.J. Super at 156.

38 Schadegg v Schadegg, Civil No. 159529, slip op. at 2-3 (Montgomery County Circuit Court. Aug 15, 1997).

39 Obergefell v Hodges, 135 S. Ct 2584 (2015).

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current state of English law can, on that basis, be referred to as appeasement of a majority.

In its examination of the question raised by the Attorney General (above), the aforementioned case of Blanchflower40 was mentioned as one where same-sex infidelity was not held to amount to adultery. However, in its stead and in favour of the notion that this paper looks to put forward, several other cases were mentioned in which adultery did include ‘same-sex sexual infidelity’41 and in a little bit more detail, that sexual activity, not limited to vaginal intercourse between members of the opposite sex, does constitute adultery. This raises the question of why, if such reasoning is applicable to heterosexual sexual coupling, it does not apply similarly to the sexual activities of homosexuals. To legally recognise one and not the other is to discriminate against and trivialise same-sex sexual relationships. It is no reflection on current societal views but instead supports a perspective that is outdated.42

The government’s argument that change would be unnecessary43 does not sit well with the definition of discrimination. West provides that ‘[t]he test for discrimination is

whether one section of society is treated differently from another.’44 It is clear that homosexual couples are being treated differently from their heterosexual counterparts

40 41

Blanchflower (n 14).

RGM v DEM 306 S.C. 145, 149 (1991).

42

Bethany Catron, Note, ‘If You Don’t Think This Is Adultery, Go Ask Your Spouse: The New Hampshire Supreme Court’s Faulty Interpretation of Adultery’, 30 U. Dayton L. Rev. 339, 339-40 (2005) 43 Tim Ross, ‘Gay marriage: divorces over adultery face legal challenge’ (Telegraph, 17 December 2012) <http://www.telegraph.co.uk/news/politics/9751431/Gay-marriage-divorces-over-adultery-face-legalchallenge.html> accessed 20 July 2016.

44 Ibid.

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making the need for change pressing and necessary. The fact that some gay rights groups45 find any change along the lines of which this paper suggests unnecessary does not remove the possibility of other same sex couples looking to enforce their separation through divorce by adultery.

Conclusion

Considering reform with regards to consummation, for the purposes of annulment, consummation should include same-sex sexual activity such as oral or anal sex and lingual or digital penetration. With its requirement of emission of seed, the change becomes even trickier, however, adaptation to permit homosexual couples to claim consummation or rather non-consummation would allow them the ability to have their marriages annulled, which unlike divorce is not frowned upon in many religious circles.46

The Government remarked in 2012 that judges could ‘develop, over time, a definition

as to what constitutes same sex consummation’47 but this passive approach will either take longer than necessary or simply fail to bring about any change especially when legal professionals advise their clients that adultery is not an available ground for divorce or non-consummation for annulment. Parliament must assume the responsibility of leading this reform. The onus is on Parliament to carefully dissect the

45

Duggins (n 6).

Owen Bowcott, ‘Opponents of gay marriage focus on the tricky definition of consummation’ (The Guardian, 10 December 2012) <https://www.theguardian.com/society/2012/dec/10/legal-definitionconsummation-gay-marriage> accessed 19 July 2016.

47 Ibid.

46

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argument and examine each facet of this multichotomous topic. This must be done without the mentality that the exercise is futile. It must be carried out with an intention to, amongst other things, ensure that the law progresses and matches societal norms.

In conclusion, the MSSCA purported to introduce equal marriage but for a number of reasons examined in this article, it failed to do so. Key components relating to marriage have not been amended to facilitate same sex couples by the Act. Without reform of adultery and consummation, one possibility would be for UK courts and legislators ought to follow the prescriptions given by the Maryland Attorney General Brian Frosh to the judiciary of his state, which stipulate that ‘plaintiff[s] in a divorce case don't have

to prove evidence of the sexual act, but merely that a spouse and paramour had the opportunity. There is no need to prove details about specific sexual acts.’48 Inclusive as this methodology is, it would undoubtedly cause uncertainty and unpredictability in law.

SSM law in the UK is both evidence of legal progression and appeasement of the masses, both religious and secular. The secular masses who demanded equality were rewarded with a diluted version of marriage while the fears of the religious masses were allayed and the traditional components of marriage were not modified to match society’s current stance on the topic. As has been shown, granting heterosexuals one form of marriage and homosexuals another does not yield satisfactory results. As such,

48

Jessica Anderson and Colin Bell, ‘Same-sex couples can commit adultery too, attorney general says’ (The Balimore Sun, 18 August 2015) <http://www.baltimoresun.com/features/gay-in-maryland/bs-mdadultery-opinion-20150813-story.html> accessed 18 July 2016.

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SSM ought to include adultery and consummation. To exclude it by law challenges the concept of equality and makes the intention and progression of law questionable.

While it is undeniable that the law has come a long way and to a large extent protects and guarantees the rights of people today, the extent to which it does not is evincible in this topic.

The law has come to match greater society’s acceptance of homosexual relationships by enacting a law that permits homosexual marriage. However, in denying them adultery as grounds for divorce, it fails to reflect accurately the state of sexual intimacy again widely accepted or expected by the general public. In Blanchflower,49 because statute did not provide an up-to-date definition of the terms in question, the Justices looked up the meaning of ‘adultery’ in a dictionary and found it to be defined as involving members of both genders. As has already been pointed out, the word ‘marriage’, of which adultery is a great component, underwent rewording in order to cater for what the law now represents. There is almost no plausible excuse that prevents the definitions of all associated components of marriage being reworded.

One possibility for reform would involve re-examination of the Act by legislators in order to weed out all discriminatory discrepancies that exist. They may do so in relation to adultery and consummation by redefining both to suit all types of marriages permitted by law. A weakness to this redefinition of what sexual intercourse entails is that if, for example, digital and lingual penetration are added to the definition of

49

Blanchflower (n 14).

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homosexual marriage, the question will arise as to why the same does not apply to heterosexual marriage. If an amendment of the definitions affects both same sex and heterosexual marriages, then chances are that further down the line, the definition of sex and sexual behaviour is going to affect sexual offences against the person.

The easiest solution would be to completely eliminate the elements of adultery and consummation in heterosexual marriage. Both are, after all, antiquated and statute does not define them in any certain terms.

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Ridgley v Ridgley 79 Md 298, 301 (1894) SB. Schadegg v Schadegg, Civil No. 159529, slip op (Montgomery County Circuit Court Aug 15, 1997).

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Tracey J and Smith R, ‘Why there’s no such thing as gay adultery in UK law’ BBC News (1 August 2015) <http://www.bbc.co.uk/news/magazine-33718943> accessed 19 March 16.

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