Pembroke Law Journal Volume 2 by pemlawsoc

Contents President’s Foreword

Vice President’s Foreword

Fourteen Internationally Renowned Scholars… Are Wrong? Michael Tucker

Principle of Pragmatism: Arbitrators’ Duty of Disclosure After Halliburton Oliver Monsø

The Is and Ought of Sex-Selective Abortion Rose Hind

The Human Rights Act 1998: More Robust Protection at No Extra Cost Nikhil Aggarwal

Evaluating the Role of Science in the United Kingdom’s COVID-19 Mitigation Policy Ophir Edelstein

A Critique of Waluchow’s ‘Constitutions as Living Trees’ Daniel Jukes

“Among the Wholesome, if arid, expanses…” Land Law and Litigiousness in British African Settler Colonies Alexandra Breckenridge

Epistemological Limits: The Inability of International Law to Confront the Climate Crisis Emma Kennedy

Protecting Migrants Under Article 8: Destined to Disappoint? Rachel Lane

Embers Beneath the Ice: A Case for Canadian Territorial Claims in the Northwest Passage Ishan Khare and Atul Alexander Taxing the Rich (Abroad): Combating UK High-Income Earner Flight to Preferential Personal Income Tax Regimes with Conditional Citizenship-Based Taxation Syed Muhammad Humaid Adil Consent and Colonialism in Customary International Law: How the West’s Disproportionate Influence Belies the ConsentBased Nature of International Law Aoibhín Spriggs

The Good Faith Conundrum: Does it Lurk in the Background or Lead as a Substantive Factor? Farzana Salik

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President’s Foreword Welcome to the second volume of the Pembroke Law Journal. We are incredibly pleased with this volume to have reached academic voices from around the globe, battling topics like international law’s ability to combat the climate crisis, abortion law, and the role of science in UK Covid-19 policy. Every new volume of this journal places more voices into the academic world, and allows writers to applaud, criticise, or merely comment on matters of law and policy internationally. I would also like to dedicate this volume to Professor Trevor Allan at Pembroke College, University of Cambridge, who is retiring this year. He has been an inspiration to all students studying constitutional law and has shaken up orthodoxy forever. Look out for the next volume in the next academic year for the call for submissions, where your work may be selected to be showcased alongside other fantastic pieces.

Michael Tucker, Pembroke Law Society President.

Vice President’s Foreword I am incredibly honoured to present the second volume of the Pembroke Law Journal. This volume will most likely be the final volume released during my time as Vice President of the Pembroke Law Society - and so I am extremely pleased to have it include such an extraordinary array of academic writings, bringing together the fascinating musings and research of scholars from around the globe. It has been awe-inspiring to see this journal grow and take on a life of its own, and I am looking forward to seeing it continue to do so in the future. Thank you very much to all that have contributed to this journal so far. Look out for the next call for submission to contribute in the future or to continue your journey with us!

Maya Edelstein, Pembroke Law Society Vice President.

Fourteen Internationally Renowned Scholars… Are Wrong? Michael Tucker The CISG Advisory Council takes pride in “offering worldwide authoritative opinions”1 on the interpretation of the United Nations Convention on the International Sale of Goods (CISG).2 In its thirteenth opinion3, fourteen members of the Council outlined their interpretation of the CISG’s position on the incorporation of standard terms. The Council reasoned that for a successful incorporation of a contracting party’s standard terms, there must be a clear reference4, paired with a reasonable opportunity to take notice of the terms.5 This essay will argue that the second of these requirements, outlined in the way the Council has, imposes too strict a requirement, which goes against the fundamental principle of the CISG, namely that it imposes no form requirements on contracts.6 The CISG As a preliminary matter, it should be noted that the CISG does not specifically outline the requirements for the incorporation of standard terms. The Advisory Council has therefore stated, from the outset, that they seek to use the normal rules on contractual formation under the CISG to find the requirements for incorporation of standard terms.7 The rules on formation of contract are therefore extracted from articles 88, 149 and 1810 of the CISG. These can be found below:

'About Us' (Cisgac.com, 2022) <http://www.cisgac.com/about-us/> accessed 5 April 2022. United Nations Convention on the International Sale of Goods 1980. 3 CISG-AC Opinion No. 13 Inclusion of Standard Terms under the CISG, Rapporteur: Professor Sieg Eiselen, College of Law, University of South Africa, Pretoria, South Africa. Adopted by the CISG Advisory Council following its 17th meeting, in Villanova, Pennsylvania, USA, on 20 January 2013. 4 CISG-AC Opinion No. 13 Inclusion of Standard Terms under the CISG, art 5. 5 Ibid, art 2. 6 United Nations Convention on the International Sale of Goods 1980, art 11. 7 CISG-AC Opinion No. 13 Inclusion of Standard Terms under the CISG, art 1. 8 United Nations Convention on the International Sale of Goods 1980, art 8. 9 Ibid, art 14. 10 Ibid, art 18. 2

Article 8: (1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware of what that intent was. (2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances. (3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties.11 Article 14: (1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. (2) A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal.12

11 12

Ibid, art 8 United Nations Convention on the International Sale of Goods 1980, art 14.

Article 18: (1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance. (2) An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise. (3) However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph.13 Reasonable Opportunity to Take Notice Article 8(2) of the CISG requires a court to interpret the words and conduct of a party as that of a reasonable person of the same kind as the other party in the same circumstances.14 The Advisory Council uses this in order to find the requirement of a reasonable opportunity to take notice; the rationale of this is that if a party did not have a reasonable opportunity to take notice of the standard terms, they could not have reasonably been expected to intend their incorporation. This general rationale seems sound, however the form in which the Advisory Council, and some courts, view this opportunity to take notice seems unreasonable when considering it is supposed to be extracted from, and therefore compatible with, the CISG. 13 14

United Nations Convention on the International Sale of Goods 1980, art 18. Ibid, art 8(2)

The Advisory Council follows the opinion of the German Federal Court of Justice in the German Machinery case.15 In this case, the court held that the recipient of a contract offer based on standard terms must have the possibility to become aware of them in a reasonable manner. This was wrongly interpreted by the appellate court of Oldenburg in Germany, which found that the only way to fulfil this requirement would be to present the terms to the other party at the time of contract conclusion.16 This is too strict a standard and, in effect, creates a form requirement, which is incompatible with article 11 of the CISG. Article 11 states: “A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirements as to form. It may be proved by any means, including witnesses.”17 Essentially, by placing a requirement on incorporation of standard terms that they must be presented at the time of contracting, the German Appellate Court of Oldenburg imposed a requirement that is stricter than formation under the CISG. It would present a situation where two parties (X and Y) could contract for a sale worth billions of pounds through a phone call, but when X tells Y that their standard terms apply, and Y agrees, the court is asserting that the standard terms have not been incorporated. Essentially, it means parties can contract freely, except where standard terms come into play, in which a form requirement is imposed. Considering this rule is supposed to be extracted from the CISG, it seems incompatible with the core of formation under the CISG, itself, namely article 11’s insistence on party autonomy in the fact of form requirements. Nevertheless, the Advisory Council made clear that they do not agree with the lower court’s interpretation of the German Machinery case.18 They agree that this sets too strict a standard, and that the reasonable opportunity to take notice requirement could, for example, be fulfilled by referring to a website,

Germany, 31 October 2001 Federal Court of Justice (Machinery Case) [http://cisgw3.law.pace.edu/cases/011031g1.html]. 16 Germany, 20 December 2007 Appellate Court Oldenburg (Industrial Tools Case) [http://cisgw.law.pace.edu/cases/071220g1.html] 17 United Nations Convention on the International Sale of Goods 1980, art 11. 18 CISG-AC Opinion No. 13 Inclusion of Standard Terms under the CISG, art 2.5.

accompanied by a URL, which would not require the terms to be expressly sent.19 The Advisory Council, here, is straying from the German Appellate Court in form, but they are not doing it in substance. By asserting that sending the terms is too strict but sending a URL link to the terms is better is a falsity. Sending a URL link to the terms and sending the terms faces the same problem: they are imposing a form requirement, where there should not be one. Austrian “Propane Case” Model The Austrian Supreme Court in the Propane Case sets out a more lenient approach, which this essay considers the better approach to incorporation under the CISG.20 The court, there, reasoned as the Advisory Council did that as the CISG does not contain express provisions for the incorporation of standard terms under the CISG, the general rules of formation apply. However, rather than merely speculating what sort of requirements must be needed under Article 8, the court reasoned with regard to offer and acceptance, starting with Article 14. The standard terms therefore need to be part of the offer according to the offeror’s intent, and where the offeree could not be unaware of that intent. This means that whether standard terms are incorporated or not, essentially comes down to whether the parties intended them to be, without regard to requirements of being sent the terms or being sent some form of URL. The CISG Advisory Council rejects the view of the Austrian Supreme Court,21 siding with Magnus that this makes an unfair risk allocation, asking the offeree to request a copy of the standard terms from the other party.22 However, this should be rejected. Firstly, it doesn’t make an unfair risk allocation because if the party was being responsible, it wouldn’t agree to contract on the basis of the standard terms if they do not know the contents of the standard terms. Therefore, the only risk is if they wish to proceed without reading them, which cannot be solved by sending the terms, because the law cannot, and should 19

Ibid Austria, 6 February 1996 Supreme Court (Propane Case) [http://cisgw3.law.pace.edu/cases/960206a3.html]. 21 CISG-AC Opinion No. 13 Inclusion of Standard Terms under the CISG, art 2.8. 22 Magnus Festschrift Kritzer 320-321 20

not, resort to forcing the parties to read standard terms if they decide they will not. Secondly, even if one agrees that this is an unfair risk allocation, these requirements are supposed to be extracted from the CISG. The CISG rules on formation ask for two things: 1. An offer23 (sufficiently definite with an intention to be legally bound24) 2. An acceptance (indication of assent to the terms of the offer25) At no point is there a requirement that a party read the terms, or even be sent the terms. Article 11’s insistence on no form requirement means that if X says to Y “I would like to purchase 100 tonnes of wheat for 20,000 pounds” and Y replies “I agree, let’s do it!”, that is a valid contract for sale. If X, instead, says “I would like to purchase 100 tonnes of wheat for 20,000 pounds subject to my general conditions of sale”, Y can reply “I agree, let’s do it!” or can reply “I would like to read the general conditions before agreeing to this contract.” As the above shows, party autonomy is central to formation under the CISG. As long as there is an offer and acceptance, there is a contract. The Advisory Council, albeit full of internationally renowned scholars, impose a form requirement which is incompatible with the normal rules on contract formation. It may pose an unfair risk, but trying to “solve” a problem in commercial trade is not the responsibility, nor the ability, of a body which claims it merely “interprets” the CISG. This essay is not saying there should not be a reasonable opportunity to take notice of the terms- if Y asks for them, X should send them, however the requirement to present the terms to the other, or direct them to a URL where the other party has not asked imposes a requirement which, as stated, imposes a form requirement, but also takes away from the speed in which deals could be made. If Y really isn’t bothered about reading the terms, why is it necessary for X to send them? Y won’t read them anyway, and it is Y’s intention that the terms are incorporated whatever they are. All of this would be a perfectly valid contract under the CISG, so why not under the Advisory Council’s direction?

United Nations Convention on the International Sale of Goods 1980, art 14. Ibid, art 8. 25 Ibid, art 18. 24

Regard to Article 7 A final reason why we should follow the direction of the Austrian Supreme Court is with reference to article 7 of the CISG. Article 7 states: (1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade. (2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law appliable by virtue of private international law.26 Article 7 is relevant to this discussion because the incorporation of standard terms is an issue which is governed by the CISG (through formation of contract) but not expressly settled. The key principle which is relevant is that expressed in Article 7(1), namely the observance of good faith in international trade. We can apply it to the following hypothetical example. X and Y contract for the sale of 100 tonnes of wheat at a price of 50,000 pounds. X sends over the contractual documents and makes clear that X’s general conditions of sale apply. X asks Y whether Y would like to see the general conditions of sale, to which Y says “I accept your terms; I do not wish to see your general conditions.” Under the Austrian Supreme Court approach27, this is enough to (i) create a contract through offer and acceptance under the CISG and (ii) incorporate the standard terms by a clear reference backed by intention of both parties to incorporate the terms.

United Nations Convention on the International Sale of Goods 1980, art 7. Austria, 6 February 1996 Supreme Court (Propane Case) [http://cisgw3.law.pace.edu/cases/960206a3.html].

Under the German Appellate Court of Oldenburg28, German Federal Court of Justice29 and CISG Advisory Council approaches30, this is enough to create a contract through offer and acceptance but not incorporate the standard terms because they have not been made available. Of the two approaches, it seems most consistent with a good faith interpretation of the CISG that where the parties clearly intend, or use words that show intention, that the standard terms are to be incorporated, it seems strange to then say Y can later claim the standard terms were never incorporated because they never had access to them. The Advisory Council therefore imputes a form requirement that doesn’t give effect to the very standard imposed by the CISG in article 7 for how to deal with areas not expressly dealt with under the articles in the Convention. Conclusion The CISG Advisory Council, by insisting on the ‘making available’ requirement31, whether through the presentation of terms or providing a URL link, has ‘extracted’ a rule that is incompatible with core provisions of the CISG. Article 11 is supposed to prioritise, above all, party autonomy in the creation of contracts. If parties do not want to send the terms, the CISG doesn’t aim to force them, and the Advisory Council should not, either. Article 7 states that when interpreting areas that are not expressly dealt with under the Convention, we should have regard to good faith in international trade. The Advisory Council has provided a way for one party to get out of an obligation by asserting that they have never been sent the terms, despite agreeing to their incorporation. The Austrian Supreme Court’s model32 is much closer to the wording of the CISG and doesn’t fall to the “unfair risk allocation” rejection that has been put by Magnus33 and the Council34. This rejection is both flawed and more importantly not the responsibility of an interpreting body. 28

Germany, 20 December 2007 Appellate Court Oldenburg (Industrial Tools Case) [http://cisgw.law.pace.edu/cases/071220g1.html] 29 Germany, 31 October 2001 Federal Court of Justice (Machinery Case) [http://cisgw3.law.pace.edu/cases/011031g1.html]. 30 CISG-AC Opinion No. 13 Inclusion of Standard Terms under the CISG, art 2.5. 31 CISG-AC Opinion No. 13 Inclusion of Standard Terms under the CISG, art 2.5. 32 Austria, 6 February 1996 Supreme Court (Propane Case) [http://cisgw3.law.pace.edu/cases/960206a3.html]. 33 Magnus Festschrift Kritzer 320-321 34 CISG-AC Opinion No. 13 Inclusion of Standard Terms under the CISG, art 2.8.

Principle of Pragmatism: Arbitrators’ Duty of Disclosure After Halliburton Oliver Monsø I.

Introduction

In 2020, the UK Supreme Court handed down its decision in the case of Halliburton Company v Chubb Bermuda Insurance Ltd (formerly Ace Bermuda Insurance Ltd) (‘Halliburton’).35 One of the issues that troubled the Court in this dispute was whether an arbitrator habitually appointed by the same party in arbitrations had a duty to disclose such multiple appointments to the opposing party, as a means of safeguarding the fairness of the proceedings. The UKSC ultimately ruled that the duty to disclose multiple references under English law depended on whether the custom and practice of the relevant field would or might reasonably support a finding that there is a real possibility of bias from such a circumstance.36 This formula – hereinafter referred to as ‘the Halliburton test’ – poses many interesting questions, particularly in the field of specialised arbitrations. The latter involves proceedings concerning agreements in specialised fields of business that tend to be dominated by repeated disputes over similar or identical questions handled by the same small pool of specialist arbitrators. Two such specialised fields are maritime and commodities arbitration. These fields are dominated by the practices of the London Maritime Arbitrators Association (hereinafter ‘LMAA’) and the Grain and Feed Trade Association (hereinafter ‘GAFTA’) as a result of the wide usage of LMAA and GAFTA standard form contracts in the relevant markets. In practice, these dispute settlement mechanisms may be said to constitute the global industry standard; LMAA accounts for around 80% of global maritime arbitrations,37 whereas GAFTA for approximately 80% of all grains trade contractual disputes 35

Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48. Ibid, paras 127-131. 37 Paul Dean and others, ‘The Maritime Arbitration Universe in Numbers: One Year On’ (HFW, May 2019) <http://www.hfw.com/downloads/001161-HFW-The-maritime-arbitration-universe-in-numbers-One-YearOn-May-19.pdf> accessed 1 May 2021. 36

worldwide.38 Considering that a large proportion of international arbitrations occurs in the fields of maritime and commodities arbitration,39 it is of practical and academic relevance to attempt to define arbitrators legal obligations of disclosure. Against this background, this essay explores the duty to disclose in the specialised realm of maritime and commodities arbitration as a safeguard against arbitrator partiality and a guarantee of procedural fairness. Section II explains the Halliburton test, whereas section III applies it in this specific field. The last section concludes that arbitrators have no duty to disclose multiple appointments by the same party in consecutive or concurrent maritime or commodities arbitrations. The essence of the argument is that the fair-minded and informed observer, having considered the pertinent custom and practice, would not find that such appointments would or might reasonably cause an appearance of bias. It is suggested that this deviates from stricter standards advocated by institutional arbitrations because of the prevalence of pragmatism in these fields. II.

The Halliburton test on the duty to disclose multiple appointments under English law

England has long prevailed as a preeminent seat of arbitration for its legal infrastructure, neutrality and impartiality and strong track record of enforcing arbitration agreements and awards.40 However, English arbitration law has recently been in rough weather for its lower court decision in Halliburton as the test for disclosure was viewed as too lenient compared to international standards.41 Since then, the UK Supreme Court handed down its decision in 38

Paulo Fernando Pinheiro Machado, ‘Some peculiar aspects of GAFTA Arbitrations’ (CIArb, 8 March 2019) <https://www.ciarb.org/resources/features/some-peculiar-aspects-of-gafta-arbitrations/> accessed 29 April 2021. 39 Craig Tevendale and Rebecca Warder, ‘Ad hoc arbitration continues to thrive in London: the latest statistics’ (Herbert Smith Freehills, 23 March 2021) <https://hsfnotes.com/arbitration/2021/03/24/ad-hocarbitration-continues-to-thrive-in-london-the-lateststatistics/#:~:text=The%20latest%20LMAA%20statistics,with%20the%20LMAA%20in%202020.> accessed 28 April 2021. 40 Paul Friedland at White & Case, ‘2018 International Arbitration Survey: The Evolution of International Arbitration’ (Queen Mary University of London¸ 2018) <http://www.arbitration.qmul.ac.uk/research/2018/> accessed 4 April 2020. 41 Halliburton Co v Chubb Bermuda Insurance Ltd [2018] EWCA Civ 817; Singapore Chamber of Maritime Arbitration (Producer) (2020) Halliburton v Chubb - implications for international maritime and commercial arbitration [Video] <https://www.youtube.com/watch?v=XtQmMQVe2MQ> accessed 23 February 2021;

the same case on 27 November 2020.42 The contention in Halliburton arose after the Chair of the tribunal, subsequent to his appointment in Halliburton, accepted two appointments in further arbitrations. Both subsequent arbitrations were common in facts, but the latter also shared Chubb as a party. The arbitrator did not disclose either of the two subsequent arbitrations to Halliburton. Although the Court outlined the test and concluded that Arbitrators in Bermuda Form Arbitrations have a duty to disclose multiple references, the Court intentionally abstained from making determinations on whether such a duty would exist in other fields and forms of arbitration. The UKSC in Halliburton found that the duty of disclosure under English law emerges from the arbitral tribunals’ statutory duty of fairness and impartiality under Section 33 of the Arbitration Act 1996.43 The Supreme Court highlighted that non-disclosure could lead both to unfairness where a party is kept in the dark about a disqualifying interest,44 or partiality where an arbitrator consciously fails to act in accordance with fairness to the potential detriment of a party.45 The UKSC determined that the test for disclosure is that of an appearance of bias, and not actual bias. While an arbitrator can be fully impartial, he should disclose the facts that ‘would or might’ reasonably give rise to an appearance of bias in the ‘mind of the fair-minded and informed observer’.46 The Court relied on Helow v Secretary of State for the Home Department (‘Helow’) to provide guidance on the nature of the judicial construct of the fair-minded and informed observer.47 In Helow, Lord Hope explained that the ‘informed’ observer will ‘take the trouble to inform herself on all matters that are relevant’ and even place the acquired information into Webinar: Quadrant Chambers (Producer) (2020) Quadrant Chambers International Panel Debate: Halliburton v Chubb [Video] <https://www.youtube.com/watch?v=06pAOl4NJlA> accessed 25 February 2021; London Shipping Law Centre (Producer) (2020) LSLC Global Webinar Series – Event 7 – Halliburton v Chubb 8 12 2020 [Video] < https://www.youtube.com/watch?v=_r-muax7HNI> accessed 23 February 2021; McNair Chambers (Producer) (2020) McNaircast: Arbitration Special – The Halliburton Arbitrator Bias case [Video] < https://www.youtube.com/watch?v=r4eJvxMfgGg> accessed 25 February 2021; Chartered Institute of Arbitrators (CIArb) (Producer) Online event – Halliburton v Chubb: Key issues and long-term implications [Video] <https://www.youtube.com/watch?v=tH8QpLWL5cg&t=15s> accessed 20 February 2021. 42 Supra 1. 43 The Arbitration Act 1996, s 33(1)(a); Supra 1, para 77. 44 Supra 1, paras 48, 77. 45 Ibid, paras 48, 78. 46 Ibid, para 74. 47 Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416, cited in Halliburton Co v Chubb Bermuda Insurance Ltd (formerly Ace Bermuda Insurance Ltd), 2020 WL 06996429 para 52.

its overall ‘social, political and geographical context’ before passing judgement.48 Additionally, the epithet ‘fair-minded’ describes an observer that gains a complete understanding of both sides of the argument and ‘appreciates that the context forms an important part of the material which she must consider before passing judgement’.49 In Halliburton, Lord Hodge relied on these findings and further emphasised the appreciation of the context and its importance to the assessment of multiple references in particular fields of arbitration. In his view, if there is an established custom and practice in maritime and commodities arbitration of viewing appointments in multiple references as unproblematic, potentially even beneficial, arbitrators in these fields would not be under a duty to disclose such circumstances.50 The meaning of the terms ‘custom or practice’ in Halliburton becomes crucial for the application of the test. A custom and practice in business are norms based on behaviours, in other words, on personal facts and social practices.51 These practices are often informal usages, customs, and traditions established through repetition, motivated by a social desire rather than a deliberate process of legislating or codification.52 Custom and practice include interpreting contracts in light of the implicit intention of the parties to give effect to the usage.53 The parties’ submissions could infer both tacit consent and waver to norms that would or would not consider multiple appointments as creating an appearance of bias. Against this background, it becomes important to examine next the standard of ‘norms and customs’ in the Halliburton test in the specific field of maritime and commodities arbitration.

Helow v Secretary of State for the Home Department and Another [2008] UKHL 62, paras 1-3. Ibid, paras 1-3 cited in Halliburton Co v Chubb Bermuda Insurance Ltd (formerly Ace Bermuda Insurance Ltd), 2020 WL 06996429 para 52 (Lord Hodge) (emphasis added). 50 Supra 1, para 127. 51 Laurent Mayali and Pierre Mousseron (eds), Customary Law Today (Springer 2018), p v; Pollock, Frederick, First Book of Jurisprudence for Students of the Common Law, (2nd ed, Macmillan and Co 1904) p. 285. 52 Ibid. 53 Ibid. 49

III.

‘Custom or practice’ in maritime and commodities arbitration as regards the duty to disclose multiple appointments

As the previous part has shown, the main yardstick for assessing the duty to disclose multiple appointments per Halliburton is their compatibility with the ‘custom or practice’ in a given field of commercial practice. This part will now turn to the analysis of the terms in maritime and commodities arbitration. Although hard and fast rules are difficult to come by, it appears relatively clear that in these fields of arbitration, there are certain features that have been reflected in the mainstream arbitral rules and usage of maritime and commodities arbitration. First, Lord Hodge in Halliburton identified the interest of obtaining consistency of interpretation between awards determined on the same facts and law. Parties in maritime and commodities disputes generally seek to appoint arbitrators with specific knowledge and expertise applicable to the dispute.54 By consolidating proceedings or appointing the same arbitrator up and down a chain of arbitrations, parties benefit from consistent determinations and the efficiency of appointing someone well-versed on the incident. Chain arbitrations are frequent in the maritime and commodities industry because of chain and string contracts. Similar scenarios that may give rise to multiple appointments include a long term time charterparty with sub time charterparties, bareboat charterparty with time charterparty and voyage charterparty, sale and sub sale of second hand tonnage and sales and re-sales of new builds.55 Second, another feature of LMAA arbitration which might appease concerns regarding multiple appointments, is that in the interest of fairness, costs, and expedition of proceedings, the tribunals in LMAA arbitrations already possess the discretion to order concurrent hearings where two or more arbitrations raise common issues of fact or law, without requiring the consent of the 54

Ibid, para 93. Eder Singapore Chamber of Maritime Arbitration (Producer) (2020) Halliburton v Chubb: Implications for International Maritime and Commercial Arbitration [Video] <https://www.youtube.com/watch?v=XtQmMQVe2MQ> accessed 5 February 2020, 30:05 Christopher Smith QC, who was instructed by GAFTA in Halliburton v Chubb.

parties.56 GAFTA also allows for concurrent proceedings and consolidated hearings in case of string contracts.57 Unsurprisingly, speed, efficiency and costs are desirable features of maritime and commodities arbitration, as there are significantly more disputes referred to ad hoc maritime arbitration than other institutional arbitrations. There were 1,775 new LMAA arbitrations registered in 2020 alone, compared to the record number of new cases reported by the London Court of International Arbitration, International Court of Arbitration and Hong Kong International Arbitration Centre, amounting to 1701 new cases combined in the same year.58 Third, multiple appointments are considered inevitable because of the high number of cases and the relatively small pool of arbitrators. The size of the pool of available arbitrators is both a consequence of the nature of arbitration itself and the specific features of different fields. Arguably, the most constructive advantage of arbitration is the ability to choose arbitrators with tailored qualifications according to the parties’ preferences.59 Party autonomy bestows the parties with the convenience to request specific qualities such as knowledge and experience in particular industries, legal or other academic backgrounds, language fluency, availability, reputation and other specifications suitable for the dispute in question.60 However, this ‘nit-picking’ of arbitrators is inadvertently becoming a significant contributor to repeat appointments as there is only a small pool of available arbitrators who meet the requested qualities and experience to

HFW represented the LMAA as an intervening party in the Supreme Court Proceedings, Jonathan Webb and Cecilie Rezutka, ‘Optics and context in arbitral appointments: A review of the UK Supreme Court Judgement in Halliburton Company v Chubb Bermuda Insurance Ltd’ (HFW, November 2020) <https://www.hfw.com/Optics-and-Context-in-Arbitral-Appointments-A-Review-of-the-UK-SupremeCourt-Judgment-in-Halliburton-Company-v-Chubb-Bermuda-Insurance-Ltd> accessed 27 April 2021; The London Maritime Arbitrators Association (LMAA), LMAA Terms 2017 (2017) Term 16(b). 57 The Grain and Feed Trade Association (GAFTA), GAFTA Arbitration Rules No. 125 (1 September 2020) article 7.2. 58 Supra 5. 59 A. Tweeddale and K. Tweeddale, Arbitration of Commercial Disputes: International and English Law and Practice (New York: Oxford University Press, 2005, re-published 2007), p 645 (referenced in: Laurens J.E. Timmer, 'The Quality, Independence and Impartiality of the Arbitrator in International Commercial Arbitration' (2012) 78 Chartered Institute of Arbitrators, 348). 60 M.L. Moses, The Principles and Practice of International Commercial Arbitration (CUP 2008), pp 117– 118 (referenced in: Laurens J.E. Timmer, 'The Quality, Independence and Impartiality of the Arbitrator in International Commercial Arbitration' (2012) 78 Chartered Institute of Arbitrators, 348).

arbitrate major disputes and other niche fields of arbitration.61 Naturally, the more qualities demanded by the parties, the smaller the pool becomes.62 This situation is also expressly recognised in the IBA Guidelines on Conflicts of Interest in International Arbitration, where the working group noted that ‘[i]t may be the practice in certain types of arbitration, such as maritime, sports or commodities arbitration, to draw arbitrators from a smaller or specialised pool of individuals.’63 Moreover, it is understandable that a party may seek to repeatedly reappoint the same shortlist of arbitrators as it may be time costly and tricky to find new arbitrators who possess the desired qualities and whom the parties dear bestow their trust.64 It is reasonable to ask whether the pool in maritime arbitration is that small compared to other niche fields; however, the fact that there is a ‘relatively’ small pool becomes apparent if compared to the number of appointments. There were 3,010 arbitrator appointments under ad hoc LMAA arbitration in 2020, compared to 37 full members65 and 29 aspiring members66 listed by the LMAA.67 That is not to say that arbitrators outside these members cannot sit as arbitrators. The LMAA itself provides a long list of individuals with supporting membership willing to accept appointments as arbitrators.68 IV.

Conclusions

This essay discussed whether multiple appointments of arbitrators in commodities and maritime arbitrations generate a corresponding obligation upon them to disclose that fact to all parties to the disputes. It further explained that in the Halliburton decision, the UK Supreme Court developed the homonymous test and held that the answer to this question depends on the 61

J. Paulsson, ‘Ethics, Elitism, Eligibility’ (1997) 14(4) Journal of International Arbitration 13. (referenced in: Laurens J.E. Timmer, 'The Quality, Independence and Impartiality of the Arbitrator in International Commercial Arbitration' (2012) 78 Chartered Institute of Arbitrators, 349); Supra 126, 189. 62 F. Slaoui, ‘The rising issue of ‘repeat arbitrators’: a call for clarification’ (2009) 25 Arbitration International 117. 63 International Bar Association (IBA) Council, IBA Guidelines on Conflict of Interest in International Arbitration (23 October 2014), Part II: Practical Application of the General Standards, footnote 5. 64 Gary Born, International Commercial Arbitration (2nd ed, Wolters Kluwer 2014), 349. 65 The London Maritime Arbitrators Association, Full Members list (2021) <https://lmaa.london/arbitratorsfull-members/>accessed 28 April 2021. 66 The London Maritime Arbitrators Association, Aspiring Full Membership list (2021) <https://lmaa.london/product/aspiring-full-membership/>accessed 28 April 2021. 67 Supra 5. 68 The London Maritime Arbitrators Association, Supporting Membership list (2021) <https://lmaa.london/product/supporting-membership/>accessed 28 April 2021.

customs applicable to each field of business practice as regards the appearance of bias. This essay examined the customs in the field of maritime and commodities arbitration and took the view that such duty does not seem to emerge in these circumstances. It justified this finding by recourse to the high frequency of multiple appointments generated by the relatively small pool of arbitrators, the high number of cases and types of industry contracts, as well as considerations of efficiency, costs and consistent awards outweighing the risk of perceived bias. Parties choosing maritime and commodities arbitration have repeatedly accepted and acted according to a custom and practice that does not find multiple appointments to be a situation that would or might reasonably cause an appearance of bias. The presumption of perceived bias is shaped by the commercial reality of these fields rather than following strict theories or rules. Accordingly, under English arbitration law, an arbitrator in LMAA or GAFTA arbitration is not under a requirement to disclose that he has or is currently sitting in arbitral proceedings arising from the same incident or facts with one of the parties.

The Is and Ought of Sex-Selective Abortion Rose Hind In 2013 the Crown Prosecution Service, overseen by Sir Kier Starmer QC, set a precedent against charging doctors who agreed to arrange abortions on the basis of sex. The decision has been interpreted as an apparent legal permission for sex-selective abortion in England and Wales. This article will summarise that choice and the current legal position on sex-selective abortion (drawing on Callus’ ‘Abortion, Gender & Prosecutorial Discretion’69), before proceeding to discuss moral approaches to the practice. Finally, it shall consider how morality and the law, taken together, might influence the current stance. On the 6th of September 2013, the British Medical Journal published an article discussing the ‘decision by the Crown Prosecution Service [henceforth CPS] not to prosecute two doctors for agreeing to perform abortions on the grounds that the unborn child was the “wrong” sex’.70 This situation will subsequently be referred to as ‘case A’. Macdonald, a former director of public prosecutions, brands this precedent as ‘very dubious’71, given it allows doctors to ‘avoid criminal action’ because of their professional status, where the CPS’s justification turned around leaving the dispensation of punitive action to the General Medical Council.72 Macdonald thus proceeds to raise a standard ‘rule of law’ argument against the decision, criticising it as ‘it seems… a slightly odd thesis that a professional person can avoid criminal sanction, criminal action, simply because he or she is subject to statutory regulation… Everyone is supposed to be equal under the law and that includes, of course, professional people.’73 Where Dicey suggests the rule of law principle that ‘no man is [or should be] above the law’ is ‘a characteristic of our country’74, Macdonald’s critique certainly carries a 69

Greg Callus, ‘Abortion, Gender & Prosecutorial Discretion’ (A Typo in the Constitution, 6 Sep 2013) Clare Dyer, ‘Prosecutors defend decision not to pursue doctors over sex selection abortions’ (2013) BMJ 347, f5465 71 John Bingham, ‘Abortion laws left 'meaningless' as doctors put 'above the law'’ Telegraph 2013; (London, 5 September 2013) 72 The General Medical Council is a public body that maintains the official register of medical practitioners within the United Kingdom 73 John Bingham, ‘Abortion laws left 'meaningless' as doctors put 'above the law'’ Telegraph 2013; (London, 5 September 2013) 74 AV Dicey, An Introduction to the Study of the Law of the Constitution (Macmillan and Co. 1915) 70

patriotic sort of emotive gravitas. However, the argument does not stand, being built upon a false premise. For the decision of the CPS to have placed medical professionals above the law, sex-selective abortion would have to be a violation of the law, which, upon inspection of the relevant statutes, does not hold true. The Legal Position A variety of offences can exist in connection with an abortion, such as ‘child destruction’ contrary to section 1(1) of the Infant Life (Preservation) Act 1929, able to be brought after the 28-week mark. Alternatively, for cases failing the 28-week criteria, sections 58 and 59 of the Offences Against the Person Act 1861 criminalise the use and acquisition, respectively, of instruments and drugs with the intent to unlawfully procure an abortion. However, in case A, no offence under s1 (Infant Life Act), or ss58 or 59 (Offences Against the Person Act) can be established. The event in question was the agreement to perform the abortion, not the abortion itself, s1 and s58 do not apply. Further where the drugs and instruments that would have been involved were, on the point of acquisition, procured with the intention to perform legal abortions (amongst other medical procedures), s59 also does not apply. In rebuttal to the proposal action A could not therefore be held criminal, it could be said it is possible, in the process of statutory interpretation, to take the application of statutes beyond the literal to avoid absurdity and close loopholes. Thus, if the statues detailed above intended to prohibit unnecessary abortions, including those related to the aesthetic characteristics of the foetus, liberal interpretation could be relied upon to achieve that telos. Where the sentiment of the law can be upheld through application of the golden75 or mischief76 rules, or the purposive approach,77 this is indeed true in general. But, in the specific context of abortion law, courts have been defiantly literal, holding fast to formal interpretation (where in R v Ahmed (Ajaz) 78, per R v 75

R v Allen [1872] LR 1 CCR 367 (HL) Smith v Hughes [1960] 1 WLR 830 (QB) 77 R(Quintavalle) v Secretary of State [2003] UKHL 13, [2003] 2 WLR 692 78 R v Ahmed (Ajaz) [2010] EWCA Crim 1949, [2011] 1 QB 512: ‘a husband accompanied his wife to the doctors to procure her an abortion, as she did not speak English. An Urdu-speaking nurse told the wife just before the procedure that it was a termination, and the wife was horrified. Yet it was determined s59 was not 76

Mills,79 it was determined s59 did not outlaw ‘procuring an abortion’, even be that unbeknownst to the mother, but was restricted to prohibiting the procurement of items that could bring an abortion about). Hence, recourse to ‘the spirit of the law’ in cases like A lacks precedence. It might be possible to charge the doctors for an inchoate offence, but this would be a novel development in English law80. Moreover, it is submitted a similarly broad interpretation to criteria like ‘more than merely preparatory’, of the sort the courts have been reluctant to apply in these circumstances, would be required here also. The Abortion Act 1967 only creates a summary offence in section 2(3), relating to wilful breaches of the certification and record-keeping requirements set out in the Abortion Regulations 1991. Indeed, the Abortion Act 1967 is best understood as a document codifying defences to would-be breaches of the potential charges set out prior. Supplementary to cases relating to the mortality and serious disability of the mother and/or foetus, the Abortion Act 1967 provides an absolute protection to any defendant if the abortion arises after two registered medical practitioners are of the opinion, formed in good faith, that ‘…the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family.’81 It should here be noted that Laws LJ has remarked obiter that many doctors consider all pregnancies to pose a greater risk of injury than abortion, making it such that there is de facto abortion on demand.82 Likewise, feeling the current statutes to be deficient, Burrows, speaking on behalf of the All-Party Parliamentary Pro-Life Group, suggested restrictions in abortion legislation are ‘meaningless.’

apt to cover ‘arranging a surgical procedure’. Ahmed’s appeal was allowed.’ (via Callus: Greg Callus, ‘Abortion, Gender & Prosecutorial Discretion’ (A Typo in the Constitution, 6 Sep 2013) https://gregcallus.tumblr.com/post/60408974183/abortion-gender-prosecutorial-discretion accessed 18 Aug 2021) 79 R v Mills [1963] 1 QB 522 80 Greg Callus, ‘Abortion, Gender & Prosecutorial Discretion’ (A Typo in the Constitution, 6 Sep 2013) https://gregcallus.tumblr.com/post/60408974183/abortion-gender-prosecutorial-discretion accessed 18 Aug 2021 81 Abortion Act 1967, s 1(1)(a) 82 R v. British Broadcasting Corporation (Appellants) ex parte ProLife Alliance (Respondents) [2003] UKHL 23, [2004] 1 AC 185

However, even if absolute permission for abortion is dismissed as a hyperbole, sex-selective abortions appear specifically permissible. S1(2) of the Abortion Act 1967 says ‘account may be taken of the pregnant woman’s actual or reasonably foreseeable environment’ – which Callus suggests will include social factors that may impact her health. He proposes that the gender of the foetus, as one such factor, is not only relevant, but potentially determinative and should therefore ‘play a role in the doctor’s good faith exercise of discretion: if, for example, a pregnant woman knew that her religious male partner would insist (against her very strong wishes) on circumcision of their child if it was one gender (but not the other), the inevitability of such surgery might be of massive significance in predicting her mental health during pregnancy.’83 Thus, the law is not merely ‘silent’ on the question of sexselective abortion as Furedi proposes, but considers that, in some circumstances, it would be substantively ‘wrong’ to refuse to consider an abortion request where the sex of the child is cited as the reason for the termination. 84 As such, the decision of the CPS on case ‘A’ does not only find legal justification in the fact that the act it opted not to prosecute was not necessarily illegal, but in the fact that the act could even be deemed legally proper. Thus, the pronouncement cannot be regarded as a contravention of the rule of law. The Moral Position The law hence currently permits sex-selective abortion, but should it? Does sex-selective abortion have a moral justification to support the legal? Mary Anne Warren and Peter Singer argue abortion (and even killing a newborn, for the latter) is morally justifiable for any reason at all. They propose that full moral consideration need only be extended to beings which meet the criteria of personhood, including biography, communicability, and rationality. As a (would-be-)child fails this test, the preferences of the pregnant woman will always trump their supposed preferences. However, this position is 83

Greg Callus, ‘Abortion, Gender & Prosecutorial Discretion’ (A Typo in the Constitution, 6 Sep 2013) https://gregcallus.tumblr.com/post/60408974183/abortion-gender-prosecutorial-discretion accessed 18 Aug 2021 84 Greg Callus, ‘Abortion, Gender & Prosecutorial Discretion’ (A Typo in the Constitution, 6 Sep 2013) https://gregcallus.tumblr.com/post/60408974183/abortion-gender-prosecutorial-discretion accessed 18 Aug 2021

flawed. Not only does it stand opposed to religious confessions and have negative consequential implications for the global perception of the elderly and disabled, but it is blind to potentiality - seeing only what is and refusing to account for what will be. Surely the argument should be adjusted to take note of the fact that the (would-be-) child will likely develop to fulfil the criteria of personhood. Yet, the potentiality counter-argument is double-edged, as Vardy illustrates in his popular ‘Doctor’s Dilemma’ thought experiment.85 Vardy notes one would likely save the life of a child over that of an old-man when forced by some malevolent circumstance to choose between the two, given it could be argued the man had enjoyed his ‘good-innings’ of life, where the child may have many more years to live and much more potential goodness to bring about. However, he goes on to suggest that it could have been that the man was, like Bertrand Russel, determined to make great contributions to moral philosophy in his late 80s and 90s, whilst the child could grow up to be a depressive mass murderer. Given the possibility of potentiality to be realised either for the better or for the worse, perhaps Singer and Warren are not at fault for paying it little heed. By contrast, for Widdows, sex-selective abortion is morally impermissible; it not only denies life, but results in the commodification of those children who are not terminated in foetal stages, encouraging the world to view them as an asset rather than an individual human being with independent desires and higher intellectual capacity.86 Writing on IVF trait selection, and the selection of sperm and egg donors, she argues focussing on the aesthetic character of the foetus to determine whether or not it will be accepted both objectifies it, and leads to the contractualisation of the parent-child relationship. The foetus becomes expected to fulfil certain characteristics, not only in the physical sense (for which it was designed), but also in the social sense: the selected boy is quasi-contractually obliged to fulfil the role of the alpha, for instance. These outcomes would make sex-selective abortion immoral in a variety of popular ethical frameworks. For instance, Immanuel Kant’s Second Formulation of the Categorical Imperative, as summarised in H.J. Randall’s Moral Law Hutchinson,87 dictates that man should treat his fellow ‘never simply as a means but always also, at the same time, as an end in himself.’ Where it has 85

Peter Vardy & Paul Grosch, The Puzzle of Ethics (revised edition, Fount Paperbacks 1999) Jeremy Williams & Heather Widdows, ‘Is using abortion to select the sex of children ever permissible?’ (British Politics and Policy at LSE, 26 Mar 2012) https://blogs.lse.ac.uk/politicsandpolicy/sex-selectiveabortion-debate/ accessed 19 Aug 2021 87 Peter Vardy & Paul Grosch, The Puzzle of Ethics (revised edition, Fount Paperbacks 1999) 86

been argued this principle is not non-hypothetical as Kant supposes, but depends on the assumption that all people are equal - a value judgement that need not be accepted (J.L Mackie’s ‘Implied Hypothetical’88) - other ethical theories can be relied upon. Mill, a figurehead of Utilitarianism, in his On Liberty89 argues that society’s happiness is the aggregate happiness of the total group, so, when the members of any faction fail to be respected as persons and are objectified, the total well-being of society is at risk. Commodification is also problematic for proponents of property rights following Locke, whose Second Treatise states a person’s permission to commodify their body and its products is non-waivable and non-derogable.90 This means it can only be exercised by the individual themselves, so cannot be handed to any parent or medic. Following the general trend of forays into the realms of moral philosophy, the above discussion reveals sex-selective abortion can be advocated both for and against on moral principle. (Indeed, in some cases, even the very same principle is the chief advocate for both sides; Aquinas’ Natural Law’s requirement to defend life applies to both the cases for and against abortion). It thus seems that ‘right’ remains an open question.91 The Legal and the Moral Due to the failure of moral debate to reach a clear, and uncontested answer, and the desire of the law to be objective and predictable, it is much debated whether the law should avoid entanglement with morality altogether.92 However, it is undeniable that such entanglement occurs. Therefore, this article will conclude by considering how morality and law taken together might influence the current stance on sex-selective abortion. From the early 1940s, when the Allies adopted ‘human rights’ as a slogan to separate their ethical policy from that of Fascist regimes, a potent conflation 88

John Leslie Mackie, Ethics: Inventing Right and Wrong (Penguin 1977) John Stuart Mill, On Liberty (John W. Parker and Son 1859) 90 “Every man has a property in his own person. This nobody has any right to but himself. The labour of his body, and the work of his hands, we many say, are properly his” John Locke Second Treatise on Government (Awnsham Churchill 1689) section 27 91 George Edward Moore, Principia Ethica (6th edition, Cambridge University Press 1954) 92 Leïla Slimani, Sex and Lies: True Stories of Women's Intimate Lives in the Arab World (Faber & Faber 2020) 89

has persisted between what is seen as morally right and what is perceived as a human right by the Universal Declaration of 1948. It is undeniable that the Convention on Human Rights comes with a certain moral authority; the UK government readily repeals, amends, and creates legislation to ensure its domestic law accords with the pronouncements of the European Court. It is submitted that this does not occur simply because the government is constitutionally bound to do so, because it is under the obligations of the treaty as a contracting state, or because it imposed its own human rights act (1998) – which incorporated the European Convention directly into national law – but because there is a strong moral feeling that human rights take priority. The Equality Act of 2010, carries a similar moral weight. This legislation protects individuals from being discriminated against for characteristics such as marital status, religion, race, sexuality and, most significantly in the context of this discussion, age, and gender. This article shall refrain from entering the rabbit-hole of determining when age and gender begin, hence at which point a foetus should receive protection from discrimination and protection of its human rights more generally (including the right to life). Nevertheless, it is important to consider the subsidiary effects of sex-selective abortion on perceptions of what it means to be a child and what it means to be a certain gender. If the practice were seen to give rise to discriminative treatment against young girls beyond the question of abortion, in education for example, there might be a moral-legal basis on which to argue it should be prevented. However, it is necessary to contemplate not only the impact of laws on sociomoral attitudes to gender, but the impact of laws on the notion of the law itself; these two considerations may pull in opposite-directions. If laws prohibiting sex-selective abortion were impossible to police, they could result in the public losing faith in the law and its purpose. For example, it could not easily be determined whether an abortion was being requested on the grounds of gender or some other factor; whatever the mother claimed, her true thought process could not be known for certain. This reality would make a prohibition on sex-selective abortion incredibly difficult to uphold, unless it was codified in the prohibition of all sex testing (or, at least the sharing of these results with those who might make an abortion decision). Yet, such a statute would surely be objectionable, given it would have to bar the showing of ultra-sound images to putative parents, and would thus negatively impact natal care.

Conclusion The CPS’ decision not to prosecute doctors who agreed to perform abortions on the basis of sex must be accepted on an analysis of the law as it currently stands. However, whether it must be accepted from a moral standpoint is an unresolved issue, the answer to which can only be subjectively determined. The reader is thus invited to reach their own opinion on whether the law on sex-selective abortion is as it ought to be, in light of the legal-moral arguments canvassed above.

The Human Rights Act 1998: More Robust Protection at No Extra Cost Nikhil Aggarwal Being slow to develop and lacking statutory footing, the common law is unable to provide the same level of rights protection as the Human Rights Act 1998 (HRA). However, Lord Sumption is wrong to argue political decisions are ‘transferred’ to the judiciary. Both Parliament and the courts must act in tandem to uphold rights. Using powers provided by the HRA, the courts start a democratic conversation, principally in Parliament. Admittedly, proportionality review does blur the line between purely legal and political judgements. However, it is far from clear this represents a transfer of political decisions, as the HRA does not destroy political constitutionalism – rather it strengthens it. It is further disputed this represents a ‘price’ extracted from the judiciary. Common Law Rights Protections v HRA When looking at the state of rights protection before the introduction of the HRA, it becomes clear common law protections are comparatively weak. Allan sees no difference between the section 3 interpretative power and the principle of legality93. This is wrong for three reasons. Firstly, whilst it is true the courts in Pierson94 considered that Parliament did not legislate in a ‘vacuum’, but a ‘European liberal democracy’, the principle was primarily aimed at Parliament accepting the political cost of legislation violating rights (Lord Hoffmann in Simms95). Section 3 cannot be said to have the same aim – in Ghaidan96 for example, Parliament did not have to face the political cost of failing to include same-sex couples as tenants under the Rent Act 1977. The courts are to read the statute in a convention-compliant way ‘so far as it is possible to do so97’. Secondly, the principle of legality is contingent on ambiguity in the statute to operate. In Witham98, Laws LJ conceded that if Parliament had explicitly 93

Allan, TRS. The Sovereignty of Law: Freedom, Constitution and Common Law R v Secretary of State for the Home Department, Ex Parte Pierson [1997] UKHL 37 (per Lord Steyn) 95 R v Secretary of State for the Home Department, Ex Parte Simms [1999] UKHL 33 96 Ghaidan v Godin-Mendoza [2004] UKHL 30 97 Human Rights Act 1998, s 3 98 R v Lord Chancellor, Ex Parte Witham [1998] QB 575 94

legislated in violation of ‘constitutional rights’, the courts would have to give effect to the statute. The common law tended toward a liberties model of protections99. As Gearty100 notes, this allowed the repeated abuse of human rights. In Malone101, Sir Robert Megarry VC declared article 8 of the ECHR non-justiciable, and that there was no equivalent domestic law. This marred his attempt to use the principle of legality. Perhaps a counter argument would be the House of Lords upheld the right of access to the courts in Anisminic102 using the principle of legality by rewriting the statute (Amy Street103). It is contended the statute was not rewritten, but this was too contingent on ambiguous drafting, as per Leggatt J in the Court of Appeal104. Denning LJ in Gilmore105 said ‘clear and explicit words’ would achieve the intended effect of denying the right, and Lord Griffiths in Hull University Visitor106 thought ‘appropriate language’ would be enough. Additionally, in Privacy International107, Lord Carnwath accepted the courts may not have been able to enforce the right of access had the word ‘purported’ been drafted in front of ‘determination’, and Sales LJ in the Court of Appeal108 thought the use of the word ‘decision’ instead would achieve the same effect. Comparatively, section 3 allows the courts to do extreme violence to the statute and depart from an unambiguous reading of the text (Lord Nicholls in Ghaidan109). It is a ‘quasi legislative power110’ (Lord Millett), far from being merely an interpretative one, unlike the principle of legality. For example, as Powell and Needleman note111, section 3 has been used to give effect to Parliament’s intention when that intention was at odds with the text of the statute, as not doing so would be ‘contrary to the grain of the legislation in a much more fundamental way112’, something the principle of legality could hardly achieve.

Poole, T Constitutional Exceptionalism and the Common Law (LSE Law, Society and Economy Working Paper 14/2008) 100 Gearty, C. On Fantasy Island: Britain, Europe, and Human Rights 101 Malone v Police Commissioner of the Metropolis (No. 2) [1979] Ch 344 102 Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6 103 Street, A. Judicial Review and the Rule of Law 104 Anisminic Ltd v Foreign Compensation Commission [1967] 3 WLR 382 105 R v Medical Appeal Tribunal, Ex Parte Gilmore [1957] 1 QB 574 106 R v Hull University Visitor ex p Page [1992] UKHL 12 107 R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 108 R (on the application of Privacy International) v Investigatory Powers Tribunal [2017] EWCA 1868 109 [2004] UKHL 30 110 Ibid. at paragraph [64] 111 F. Powell & S. Needleman, ‘How radical an instrument is Section 3 of the Human Rights Act 1998?’, 112 Fessal v Revenue and Customs [2016] UKFTT 285 (TC) at paragraph [56]

Thirdly, it is uncontroversial to state there are more rights covered under the HRA than the common law, as Van Bueren113 observes. Additionally, Tugendhat J in AKJ114 acknowledged common law rights are difficult to identify, lacking in codification and being subject to an absolute conception of Parliamentary sovereignty. As such, Sales is correct to conclude the HRA provides stronger rights protection and has eclipsed the principle of legality115. Transferring Political Decisions Lord Sumption is wrong to suggest decisions of a political nature are ‘transferred’ to the courts. Bellamy is correct to make the bold argument that the HRA does not inherently reduce the effectiveness of political constitutionalism, even if it strengthens legal accountability116. Section 19(1) requires ministers to declare bills compatible with convention rights before the second reading which forms an important, if symbolic, part of Parliamentary scrutiny. Section 4 is a clearer example. As the ECtHR have bemoaned in Hobbs v UK117, B&L v UK118 and Pearson v UK119, a declaration of incompatibility (DoI) of legislation with human rights does not provide a remedy to the appellants in the case at hand. It invites the political back in to control the legal at the moment where legal discourse seems assured (Gearty)120. Although it is difficult to dispute Ewing that the HRA transferred political power to the courts121, it does not follow the courts use this power to make political decisions. Rather, the political pressure generated by a section 4 declaration is for the purpose of starting a conversation with the democratic Parliament. As Lord Kerr observed in Nicklinson122, it does not compel Parliament or the government to act. A DoI remits the issue to Parliament for a political decision, informed by the court’s view of the law.

113

Van Bueren, G. The International Law on the Rights of the Child AJK v Commissioner of Police for the Metropolis [2013] EWHC 32 (QB) 115 Sales, P. A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998 Lecture 116 Bellamy, R. Political Constitutionalism and the HRA in the International Journal of Constitutional Law [2011] 86 117 (Unreported) (European Court of Human Rights Draft Judgment, 2007) 118 [2006] 1 FLR 35 119 [2011] ECHR 2319 120 Gearty, C. Can Human Rights Survive? 121 Ewing, KD The HRA and Parliamentary Democracy in The Modern Law Review [1999] 78 122 R (on the application of Nicklinson) v DPP [2014] UKSC 38 114

On the dialogic model, the courts have the object of applying Parliamentary intention, but are willing to engage in conversation about what those intentions are (Roach)123. Tushnet is right to observe that judicial review under the HRA allows the courts to bring rights into focus in the legislative forum124, yet he goes on to contend this is not a voluntary dialogue and it constrains is contrary to the separation of powers. This is not necessarily an issue. Aside from the obvious point that Parliament is free to ignore a DoI, Yap contends this is necessary to bypass the ‘bureaucratic inertia125’ inherent in the legislature. The fact Parliament has a political incentive to engage in dialogue with the judiciary does not diminish the effectiveness of such dialogue. If Parliament does intend to trample over the rights of individuals, it is entitled to do so. An exchange to this effect took place following Joint Council for the Welfare of Immigrants126. The Court of Appeal could not believe Parliament intended to confer powers to strip asylum-seekers of social security entitlements if they did not claim asylum immediately upon entry to the UK. Parliament expressed its intention more clearly in the form of passing fresh legislation reversing the ruling127. It is not clear Lord Sumption’s premise that the courts straying into making political decisions is a ‘very high’ price. Proportionality review arguably comes the closest to forcing the courts to make political decisions (Ekins and Gee)128, but it is difficult to argue with the European Court in Hirst v United Kingdom (No.2)129 when they observed there is ‘no evidence’ Parliament had ever sought to weigh the competing interests or to assess the proportionality of the contested ban as it affected convicted prisoners. The legislature is a fundamentally political branch of government – if the electorate by majority seems not to care about the rights of unpopular societal groups, Parliament will not go out of its way to uphold those rights in a proportional manner. Another example is A v Secretary of State for the Home Department130 where the political backlash, if indeed there was any significant backlash, was not enough to protect suspected foreign terrorists from being deprived of their 123

Roach, K Dialogic Remedies in the International Journal of Constitutional Law [2019] 860 Tushnet, M Against Judicial Review (Harvard Public Law Working Paper No. 09-20) 125 Yap, PJ Defending Dialogue in Public Law [2012] 527 126 R v Secretary of State for Social Security Ex Parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 (CA) 127 Asylum and Immigration Act 1996 128 R. Ekins and G. Gee Putting Judicial Power in its Place 129 [2005] ECHR 681 130 [2004] UKHL 56 124

freedom of movement where, as Lady Hale pointed out, the same did not apply to British nationals. Political accountability in relation to upholding rights is notably weak (Allan)131, which is partly why Lord Cooke concedes that working out truly fundamental rights ultimately an ‘inescapable judicial responsibility’132.

131 132

Supra note 1 Cooke, R Fundamentals in the New Zealand Law Review [1988] 158 p.165

Evaluating the Role of Science in the United Kingdom’s COVID-19 Mitigation Policy Ophir Edelstein

In the winter of 2019, the world was confronted with the rapid spread of a new virus – COVID-19. This pandemic, which originated in China, soon proved to be immensely contagious and deadly, spreading to all corners of the world, including the United Kingdom. While many countries chose to swiftly enact severe restrictions meant to suppress the spread of the virus (such as travel bans and lockdowns), the UK government opted for a mitigation policy. This decision has been widely criticised from the start, and the UK government has sought to defend its actions by framing its policies as ‘following the science’.133 This essay will argue that while the UK government did indeed follow the scientific advice of its experts, this advice was lacking and sometimes downright wrong. In other words, they followed the science, but not the correct science. The essay will begin with an overview of the UK government’s policy response to the spread of COVID-19 from January to mid-March and explain why it was a failure. Then, it will evaluate the role that science played in the government’s policy decision-making and present three main reasons why it failed – advisors not making explicit recommendations, advisors giving unqualified advice, and lack of diversity of advisors. This examination of the role of science behind the UK government’s policies dealing with this recent health crisis is essential to ensure that lessons are learnt and future crisis policies are handled better. Policy Overview At the beginning of January, global early warning systems already triggered an initial response to the emerging pandemic in the UK, leading to the convening of the government’s New and Emerging Viral Threats Advisory Group (NERVTAG), and soon after the Scientific Advisory Group for Emergencies

133

DEVLIN, H. & BOSELEY, S. 2020. Scientists criticise UK government's 'following the science' claim. The Guardian [Online]

(SAGE), the UK’s most important scientific advisory board.134 At the time, evidence from China appeared to show that there was no significant human-tohuman transmission, and the UK’s scientific advisors only recommended setting the risk level to “low”. However, while the evidence from China soon changed and began reflecting the danger, this was not mirrored in the UK’s threat level, which was only raised to “moderate” on January 30th, a mere day before the first case of COVID-19 was confirmed in the UK.135 The UK’s initial policy focused on identifying people with symptoms returning from China. However, it became obvious this approach was doomed when reports came in of cases and deaths in countries with which the UK had close links.136 It was not until March 3rd that the government finally published its action plan for combatting the pandemic.137 Only two days later, the first death of COVID19 in the UK was confirmed, prompting the move to the second phase of the pandemic plan, “delay”.138 At this point, the UK government was still proceeding with their policy of mitigation rather than suppression, which included many minor, discretionary measures rather than an overall strict lockdown.139 The reasoning behind this strategy was an attempt to flatten the curve of infections whilst not suppressing it altogether, thereby achieving “herd immunity” and preventing a second peak during winter, when the combination with other diseases such as the flu would overwhelm health services.140 On March 23rd, not three weeks later, Prime Minister Boris Johnson announced the first general UK lockdown.141 As we can see, while it took two months from 134

ATKINSON, P., GOBAT, N., LANT, S., MABLESON, H., PILBEAM, C., SOLOMON, T., TONKINCRINE, S. & SHEARD, S. 2020. Understanding the policy dynamics of COVID-19 in the UK: Early findings from interviews with policy makers and health care professionals. Social Science & Medicine, 266. 135 GREY, S. & MACASKILL, A. 2020. Special Report: Johnson listened to his scientists about coronavirus - but they were slow to sound the alarm. Reuters [Online], p90. 136 Ibid, p.11-12 137 DEPARTMENT OF HEALTH AND SOCIAL CARE. 2020. Coronavirus action plan: a guide to what you can expect across the UK. 138 MARSH, S. & CAMPBELL, D. 2020. Coronavirus: first UK death confirmed as cases surge to 116. The Guardian [Online] p.13 ; GREY, S. & MACASKILL, A. 2020. Special Report: Johnson listened to his scientists about coronavirus - but they were slow to sound the alarm. Reuters [Online] p.13. 139 CAIRNEY, P. 2021a. The UK government’s COVID-19 policy: assessing evidence-informed policy analysis in real time. British Politics, 16, p.7. 140 BIRCH, J. 2021. Science and policy in extremis: the UK’s initial response to COVID-19. European Journal for Philosophy of Science, 11, p6 ; SCALLY, G., JACOBSON, B. & ABBASI, K. 2020. The UK’s public health response to covid-19. BMJ, 369, p.2. 141 INSTITUTE FOR GOVERNMENT. 2021. Timeline of UK government coronavirus lockdowns [Online] ; CAIRNEY, P. 2021b. The UK Government’s COVID-19 Policy: What Does “Guided by the Science” Mean in Practice? Frontiers in Political Science, 3, p90-91.

the moment the alarm was raised to the UK’s government publishing an official plan, it took them less than a month to abandon their policy of mitigation and enact one of suppression. Critics claim that this rapid reversal is proof that the mitigation policy was a failure. However, judging a policy’s success or failure is not a straightforward task. When judging the results of a policy, it is necessary to regard it as a spectrum, especially considering that we view both success and failure through a lens of value orientations.142 Thus, while the UK’s mitigation policy was possibly successful in some respects (for example, on economic grounds), this essay focuses on the policy’s scientific aspect and its results specifically. As mentioned previously, the policy aimed to avoid a severe second peak during the winter months, which would overwhelm health services. When considering these goals, it is clear that the policy was a failure. By October, the UK was globally ranked in the top 20 for highest number of cases and the top 5 for deaths per million people.143 The number of cases at the time, which surpassed the pandemic’s peak in the spring, led to a second national lockdown and an overwhelmed healthcare system,144 precisely what the policy sought to avoid. Considering this, it is clear that lockdown was essential in the UK and that the delay contributed to tens of thousands of avoidable deaths.145 Since the UK’s mitigation policy has been established as a failure, it is sensible to ask what the role of science was in this outcome – especially considering its placement as the public justification behind the policy. Was the failure due to faulty science, or are the policymakers to blame? That is the topic of the next section.

142

WEIBLE, C. M., NOHRSTEDT, D., CAIRNEY, P., CARTER, D. P., CROW, D. A., DURNOVÁ, A. P., HEIKKILA, T., INGOLD, K., MCCONNELL, A. & STONE, D. 2020. COVID-19 and the policy sciences: initial reactions and perspectives. Policy Sciences, 53, p.236-237. 143 BREWER, M. & TASSEVA, I. V. 2021. Did the UK policy response to Covid-19 protect household incomes? The Journal of Economic Inequality, 19, p434. 144 BBC. 2020b. Covid-19: PM announces four-week England lockdown. BBC News [Online] 145 CAIRNEY, P. 2021b. The UK Government’s COVID-19 Policy: What Does “Guided by the Science” Mean in Practice? Frontiers in Political Science, 3, p.7 ; SCALLY, G., JACOBSON, B. & ABBASI, K. 2020. The UK’s public health response to covid-19. BMJ, 369, p.12.

The Science Behind the Policy It was evident to the UK’s expert advisors that the threat was critical from midJanuary.146 How can it be explained that it took six weeks before strict policy measures were finally implemented? While this delay might cause one to doubt that the UK government indeed followed the science, an examination of the recommendations passed down by their scientific advisory groups shows that government policies were remarkably consistent with the advice they were given. Instead, structural deficiencies in the scientific advice process were the problem, with three dominant ones identified by scholars. The first of these relates to the debate over experts’ appropriate involvement in the policy-making process. Birch differentiates between two types of normative advice: light and heavy.147 Normatively light advice does not endorse any particular course of action, instead providing conditionals describing the consequences of each option available. On the other hand, normatively heavy advice goes one step further and recommends for or against specific options. During severe emergencies (such as a deadly pandemic), normatively heavy advice could help expedite the decision-making process by clarifying the best options identified by the advisors. As opposed to the view taken by Birch, the UK’s scientific advisors believed that it was not their place to give explicit advice to the government. During the initial response to the pandemic, even though the government’s advisors had quickly concluded that the virus posed a critical threat, they refrained from clearly and forcefully signalling this to the government for more than two months.148 The reasons behind this choice are unclear. Some attribute it to a political culture with a strong belief that advisors must only advise and not be directly involved in the decision making.149 Others believe that the experts were afraid that the government was attempting to shift the responsibility onto them

146

GREY, S. & MACASKILL, A. 2020. Special Report: Johnson listened to his scientists about coronavirus - but they were slow to sound the alarm. Reuters [Online], p.6. BIRCH, J. 2021. Science and policy in extremis: the UK’s initial response to COVID-19. European Journal for Philosophy of Science, 11, pp. 4-5, 13-14. 148 GREY, S. & MACASKILL, A. 2020. Special Report: Johnson listened to his scientists about coronavirus - but they were slow to sound the alarm. Reuters [Online], p.1-6. 149 Ibid, p.12. 147

and so tried to make sure that could not be done.150 Regardless of why the experts chose to act this way, their aversion to giving straightforward advice helps explain the slow UK response to the pandemic. Policymakers could have easily misconstrued that the threat level remains low as long as their advisors do not say otherwise. A second factor that contributed to the failure of the policy was advisors stepping beyond their purview and therefore giving faulty recommendations. When evaluating expert advice, it is essential to distinguish between expert knowledge, expert opinion, and ordinary opinion. Expert knowledge usually only exists in the hard sciences, for it refers to undisputed facts, such as the laws of thermodynamics. Expert opinion refers to advice that is not indisputably true, yet still falls comfortably within the expert’s field of expertise. Finally, there is ordinary opinion, which covers opinions offered by any person who is not an expert on the field the opinions relate to. For example, an epidemiologist’s advice on COVID-19 would be expert opinion, but their advice on voting patterns would be ordinary opinion.151 The distinction between types of expert advice is relevant when attempting to explain why the UK’s expert advisors’ understanding of the urgency of the threat did not translate to a strict policy. Evidence suggests that rather than being ruled out, strict measures such as lockdown were initially not even considered by UK advisors. The reason for this oversight was the advisors’ belief that the UK public would not accept the restrictions and that such stringent measures are not acceptable in a democracy.152 This decision by scientific advisors to consider only measures that they deemed politically feasible is a striking example of experts straying into the domain of ordinary opinion. The UK’s scientific advisory boards are comprised of experts from mainly medical, biological, and mathematical fields.153. Therefore, these experts have no authority or expertise to predict how the population might react to potential

150

measures; neither do they have any basis for judging how democratic these measures are. As we can see, even though the government strictly adhered to their experts’ advice, this advice was severely lacking due to being based on advisors’ unqualified assumptions. That is not to say that the government could not have been able to identify this issue, as there were plenty of external experts that underscored different conclusions. For example, regarding public compliance, behavioural scientists warned that while it might be intuitively plausible, there was no documented evidence to support this assumption154. Thus, we can see that this oversight could have been avoided had the government listened to experts outside their advisory boards, which leads us to the final issue to be discussed – diversity. As has been established previously, the advice provided to the UK government by its scientific advisors can be classified as expert opinion at most, because there was room for disagreement. This disagreement is often crucial for the process because considering differing (expert) opinions helps ensure that nothing is missed. However, in the case of the UK COVID-19 policy decisionmaking, it appears that this vital process did not fully occur. From the beginning, when the government’s advisors were not even considering strict measures due to their erroneous assumptions, other experts were acutely aware of the inadequacy of the UK’s policy.155 While it is very likely that disagreements occurred within the advisory groups, policymakers were mistaken to trust that this discourse was sufficient. While the official advisory groups have a certain diversity of representatives, not all relevant fields of expertise are represented. Moreover, women and ethnic minorities are under-represented in these advisory bodies, which means their considerations and unique perspectives will not have been considered.156 Thus, even though the government followed scientific advice, we again see that this advice was not up to par. These three deficiencies in the process of the UK’s scientific advice production – avoidance of normatively heavy advice, 154

SIBONY, A.-L. 2020. The UK COVID-19 Response: A Behavioural Irony? European Journal of Risk Regulation, 11, p.354. 155 GREY, S. & MACASKILL, A. 2020. Special Report: Johnson listened to his scientists about coronavirus - but they were slow to sound the alarm. Reuters [Online], p.10. 156 SIBONY, A.-L. 2020. The UK COVID-19 Response: A Behavioural Irony? European Journal of Risk Regulation, 11, p.2.

confusing expert with ordinary opinion, and the side-lining of important perspectives – are what can be said to have led to the UK government’s failed policy of mitigation. Conclusion Overall, the answer to whether scientific advice had a significant impact on the UK’s COVID-19 policy is a resounding yes. From the initial meeting of NERVTAG in January to the decision to finally enact a national lockdown in mid-March, government guidance was consistent with the advice they were receiving from their experts. However, this does not automatically mean that UK policy can be branded as “following the science”. They might have been following the scientists, but they were not following the science, strictly speaking. First, we saw how the scientific advisors failed to convey the severity of the situation by avoiding normatively heavy advice, even though the science was clear. Second, these experts chose to base their advice on non-scientific assumptions they were not qualified to make, and therefore these decisions cannot be considered entirely scientific. Finally, the government was let down by the lack of diversity and representation in their advisory groups, as they were not provided with key differing perspectives. In sum, while the role of science was central to the justification of the policy, failures in the UK’s government’s advisory process led to the policy’s failure. Therefore, when criticising the UK government’s decision to implement a mitigation policy, the criticism might be that, rather than ignoring their scientific advisors, they failed to question their assumptions.157

157

GREY, S. & MACASKILL, A. 2020. Special Report: Johnson listened to his scientists about coronavirus - but they were slow to sound the alarm. Reuters [Online], p.3.

A Critique of Waluchow’s ‘Constitutions as Living Trees’ Daniel Jukes Section I: Introduction Waluchow’s article ‘Constitutions as Living Trees: An Idiot Defends’158 is an important contribution to the academic debate regarding constitutionalism. The ‘living tree’ approach to constitutional interpretation combines the fixity of Charters with the organic nature of the common law, allowing judges to reinterpret the constitution to fit with modern society’s values.159 Waluchow’s article will be focused on because, if his argument is successful, he will have rebutted the modern political constitutionalist’s concerns about entrenchment. However, as this essay will show, Waluchow’s theory has several flaws which means that he fails to adequately respect disagreement whilst simultaneously affording too much power to the unelected judiciary. The essay will analyse four key elements of Waluchow’s theory in turn; symbolism (section II), deep consensus (section III), the common law methodology (section IV) and the importance of the judiciary (section V). The scope of this essay will be primarily confined to critiquing Waluchow’s theory however, an implicit yet persuasive case will be built against the need for strong-form judicial review of constitutional provisions, as opposed to advocating that originalism is the better form of interpretation.160

158

Wil Waluchow, ‘Constitutions as Living Trees: An Idiot Defends’ (2005) 18 Can L J & Jurisprudence 207. Ibid, 227. See for an example of an argument supporting originalism, Larry Alexander, ‘Of Living Trees and Dead Hands: The Interpretation of Constitutions and Constitutional Rights’ (2009) 22 Can L J & Jurisprudence 227.

159 160

Section II: Symbolism A hackneyed argument used to support entrenchment is that a Charter becomes widely recognised and has a symbolic importance which suggests that a nation is ‘publicly committed…to fundamental rights.’161 Whilst it can be seen that in some countries, such as the United States of America, there is a fervent desire to protect and uphold the constitution, this can be detrimental to the quality of debate about the scope and content of rights. Waldron emphasises that Charters can actually just ‘finesse the real and reasonable disagreements’ which does not encourage society to challenge the moral issues at the heart of the disagreement.162 Furthermore, the ‘verbal rigidity’163 of an enshrined right has an unwanted effect because such a right 'finds protection…under the auspices of some canonical form of words in which the provisions of the charter are enunciated.’164 This leads to a situation where the words ‘take on a life of their own, becoming an obsessive catch-phrase’ from which any meaning can be attributed to the right in question.165 The words act as a conduit to allow different people to attribute a wide variety of meanings to a provision; this leads to an unhealthy and obsessive debate surrounding particular words, such as the noun ‘speech’ in the First Amendment and whether this can include flag burning or topless dancing, rather than engaging with the with the actual limits of the substantive right.166 Therefore the symbolic nature of the charter actually hinders debate instead of being a positive force for good.

161

Waluchow (n 1) 235. Jeremy Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115(6) Yale LR 1346, 1369. 163 Jeremy Waldron, ‘A Rights-based Critique of Constitutional Rights ‘ (1993) 13(1) OJLS 18, 26. 164 Ibid, 26. 165 Ibid, 26. 166 Ibid, 26. 162

Section III: Deep Consensus Waluchow’s thesis relies on the traditional argument in support of the fixity of Charters, justifying it by reference to a deeper consensus that can be achieved at an abstract level.167 He argues that Charters can protect ‘entrenched or transitory minorities against the majoritarian biases and excess of democratic legislatures,’168 therefore an element of ‘”rational pre-commitment”’ is desirable as long as the ‘inherent limitations’ are acknowledged.169 Whilst there may be disagreement about the intricacies of what a provision entails thus limiting how far pre-commitment can go, most would agree that broad notions such as ‘”equality, “freedom of expression (or speech),” “due process” or “fundamental justice” are worthy of inclusion in a Charter.’170 As Allan highlights, whilst rights remain in the vague ‘Olympian heights’ everyone can support them, however down in the ‘quagmire of detail’ is where the problems occur.171 Yet even these ‘Olympian heights’ are susceptible to some disagreement and this is just one of the flaws in Waluchow’s consensus argument. First, there is deep disagreement about all rights and what they amount to, even at an abstract level.172 These disagreements occur ‘at a philosophical level..., some become apparent when you try to relate abstract principles of a right to particular legislative proposals…, and some become apparent only in the

167

Waluchow (n 1) 232. Waluchow (n 1) 231. 169 Ibid, 231. 170 Ibid, 232. 171 James Allan, ‘An Unashamed Majoritarian’ (2004) 27 Dalthouse LJ 537, 543. 172 Waldron, ‘The Core of the Case’ (n 5) 1366-1367. 168

context of hard individual cases.’173 There may be disagreement about whether socioeconomic rights should be classified as a right at all.174 This lack of agreement at an abstract, ‘Olympian’ level would undermine the notion of consensus, weakening the confidence one can have in Waluchow’s claim. These disagreements occur at the ‘core’ of discussions about political rights, and not just at the edge of debate.175 This does not necessarily mean that there is no right answer to such moral issues, rather that if it does exist there is no universally accepted methodology of discovering it.176 This is evidenced by Rae’s suggestion that there are as many as 108 versions of equality.177 Thus disagreement can also be seen to permeate the ‘quagmire of detail’ that Allan highlighted. It could easily be said that some of these versions are more or less persuasive than others, however the sheer number emphasises just how widespread disagreement can be. Marmor notes that even if there was deep consensus it would be at such a high level of generality that it would be useless.178 He uses the example of the legitimacy of abortion, where he says ‘some people claim that abortion is…murder and thus ought to be prohibited.’179 Marmor does suggest that there is some common agreement that murder is wrong and thus if it was accepted that abortion was akin to murder it would be to forbidden.180 Therefore Waluchow’s theory does seem to be partially correct as even amongst the

173

Ibid, 1367. Ibis, 1367. 175 Ibid, 1367. 176 Jeremy Waldron, Law and Disagreement (Clarendon Press 1999) 244. 177 Douglas Rae, Equalities (Harvard University Press 1981) 133. 178 Andrei Marmor, ‘Are Constitutions Legitimate’ (2007) 20 Can JL & Jurisprudence 69, 89-92. 179 Ibid, 90. 180 Ibid, 90. 174

disagreement there is some consensus surrounding murder. Yet this general agreement cannot settle the abortion debate as the separate camps may subscribe to different moral standards, such as religion compared to a more liberal, prochoice version of morality.181 This disagreement occurs at a theoretical level and means the two sides, owing to their differing belief systems, cannot come to a reasonable compromise. Even if one accepts that Waluchow’s argument has some force, and to an extent it does as undoubtedly there is some consensus at a general level, it cannot solve the specific disagreement. A Charter trying to accommodate a provision on abortion would prevent open discussion, as one side of the argument would be preferred over the other. In fact, Waluchow’s suggestion that even mild agreement at an abstract level is enough to base a constitutional provision on, fails to appreciate that this will prevent open and frank discussion about the scope of substantive rights. These theoretical issues cannot be solved by appealing to vague concepts enshrined in a constitution. The utility of these concepts can only be assessed through open debate about what these concepts entail and how they balance against one another— entrenching these values wrongly places them into the judicial and not political arena. The problem with judicial interference will be discussed below (section IV and V). Mildenberger criticises Waluchow’s consensus argument for not going far enough, arguing that whilst the presence of such agreement is justification for entrenching rights, his thesis does not require these rights to be liberal or

181

Ibid, 90.

egalitarian.182 This argument fails to appreciate that those concepts are vague, therefore, if entrenched within a constitution, simply transfer more power to the judiciary. Mildenberger offers the same critique of Waldron’s theory, suggesting that it lacks respect for rights and does not lead to egalitarian ends.183 Yet, Waldron’s theory is based upon the right to equal participation,184 and Mildenberger’s criticism proves Waldron’s point – as Mildenberger fails to respect disagreement about what equality actually means. Entrenching a certain conception of liberty or equality into the constitution cannot adequately respect disagreement. Whilst Mildenberger may believe his view is correct, he falls into the ‘hubristic’ trap that Waluchow outlines,185 which prevents revision and adaptation as society evolves. Overall deep consensus, even at a theoretical level, is at best not particularly useful therefore, Waluchow should not be so confident to use it as definitive proof that entrenchment is desirable. Section IV: The Wisdom of the Common Law Waluchow’s thesis is unique due to its reliance on the ‘relative adaptability characteristic of the common law.’186 He believes that the common law provides the correct balance between, as Hart describes, ‘a body of rules which…are as determinate as any statutory rule’,187 and the capability of being adaptable to new situations in which the rules need to be applied. 188 Thus, the common law’s approach is meant to prevent the ‘dead hand of the past’ from constraining the

182

Joshua Mildenberger, ‘Waldron, Waluchow and the Merits of Constitutionalism’ (2009) 29(1) OJLS 71, 73. 183 Ibid, 73-74. 184 Waldron, Law and Disagreement (n 19) Ch 11. 185 Waluchow (n 1) 235. 186 Ibid, 222. 187 HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 135. 188 Waluchow (n 1) 229.

development of the law.189 This view of constitutional interpretation cannot be solely attributed to Waluchow, as Dickson J previously remarked that the Canadian Charter ‘must be capable of growth and development over time to meet new social, political and historical realties often unimagined by its framers.’190 This section will outline and critique Waluchow’s reliance on the common law. The common law can be criticised for being ‘insular, self-perpetuating, and lack[ing an] adequate feed-back mechanism.’191 The insular nature of the common law comes from its focus on individual cases, rather than allowing the court to survey the wider moral problem in all its forms.192 When a judge makes their decision they can only adjudicate on the case in front of them and therefore may not engage with all of the potential arguments in support of a given position. This issue is aggravated by the doctrine of stare decisis, as if an inadequate decision is made it will then be reinforced when judges in lower courts look for analogous cases to help inform their reasoning in a new case.193 Similarly, the common law is a ‘closed…system’ as it is largely based on precedents thus there is no reliable feedback mechanism to inform judges they have made a poor decision which has created an unwanted line of authority.194 Strauss seeks to mitigate this problem by suggesting that the common law does not needlessly adhere to past judgments, as incorrect decisions can be

189

Ibid, 233. Hunter v Southam (1984) 11 (4) DLR 641, 649. 191 Marmor (n 21) 91. 192 Ibid, 91. 193 Ibid, 91. 194 Ibid, 91. 190

overruled.195 This is supported by the recognition that most apex courts, for example the United Kingdom Supreme Court, are permitted to depart from precedent.196 Yet precedent is still key to the common law and lower courts will perpetuate the mistakes made by their predecessors. In fact, it is worse as ‘precedents in an area of law tend to channel the kind of cases that would initially reach higher courts.’197 Thus, in parts of the law where precedent appears settled, litigants are discouraged from taking their cases further. Practically, the cost of litigation also prevents many from pursing appeals even if they have a reasonable chance of success. Waluchow would counter the insular nature of the common law, relying on its ability to produce incremental changes to the law. However, in the appellate courts this can go too far leading to considerable change over time.198 Radical change could be described as mere revision of a previously incorrect precedent;199 whilst incremental development can produce drastic changes over time, however each decision in isolation may appear to be uncontroversial.200 Living tree interpretation could be seen as providing some constraints on judges and thus the real issue is defining the limits of the interpretative approach.201 Yet these limits are overseen by the judiciary thus one has to place their faith in the judiciary, to determine the extent of moral rights, if they are to accept the

195

David Strauss, ‘Common Law Constitutional Interpretation’ (1996) 63 Univ of Chicago LR 877, 896-97. See for example, Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. 197 Marmor (n 21) 91. 198 Peter Hogg, ‘Canada: Privy Council to Supreme Court’ in Jefferey Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (2006) 55, 88. 199 Grant Huscroft, ‘The Trouble with Living Tree Constitutionalism’ [2006] 25 The University of Queensland Law Journal 3, 10. 200 Ibid, 10. 201 Ibid, 10. 196

living tree constitution. Dworkin believes the living tree constitution places serious restrictions on judges as they are bound by the requirement of ‘integrity.’202 Dworkin states ‘judges must defer to the general settled understandings about the character of the power the Constitution assigns them.’203 However, the presence of disagreement means that this task is hard and even if a judge is prohibited from making an interpretation that does not fit with a constitution’s ‘history, or practice, or the rest of the Constitution’,204 there is uncertainty about what this actually means. The temptation under Dworkin’s theory is for judges to interpret the Charter in a way that gives effect to their own values.205 Dworkin rejects this criticism highlighting the limits of ‘integrity’,206 however this appears to contravene nemo judex in causa sua as it amounts to asking society to put faith in judges to regulate themselves. Even those judges acting in good faith may accidentally but radically change the constitution, which would then raise issues over the legitimacy of constitutional law.207 Waluchow’s final defence to these criticisms is to suggest that, in theory, constitutional amendment is still available and therefore any deficiencies in the common law can be solved by the legislature.208 However, whilst in theory this is correct, in practice this suggestion has its weaknesses as amending the constitution is difficult because of the onerous procedures. The fact Waluchow resorts to this argument suggests a hole in his theory which he is aware he cannot cure— the problem of democratic legitimacy.

202

Ronald Dworkin, Freedom’s Law (OUP 1996) 10-11. Ibid, 10-11. Ibid, 11. 205 Huscroft (n 42) 12. 206 Dworkin (n 45) 11. 207 Huscroft (n 42) 12. 208 Waluchow (n 1) 232. 203 204

Waluchow’s use of the common law has the benefit of allowing the Charter to represent the current community’s constitutional morality. Yet for Waluchow’s theory to function it must be ‘parasitic on some other notion of what the constitution is’,209 and this sits above the living tree constitution. Waluchow’s theory relies on principles from within the constitution as well as precedent and political policies which give the law meaning.210 However, Alexander notes that for ‘these principles to have something to explain, there must be content to the constitution…that is independent of those principles and that provides the grist for those principles’ construction.’211 Alexander argues that these principles must be based on the text of the constitution, thus supporting the case for originalism.212 This is because when the constitution was ratified there was no precedent or political policies specific to the constitution, thus the only source of meaning was the text itself.213 This criticism appears to be correct as without something for the meaning of the constitution to be based upon, constitutional morality collapses into an arbitrary standard that is applied by judges. The purpose of this essay is not to critique originalism, but there are several criticisms of originalism that make it as equally undesirable as the living tree approach.214 Yet the important point that Alexander makes is that for the living tree constitution to have meaning it must be predicated on something that explains the constitution and the use of constitutional morality cannot be it.

209

Larry Alexander, ‘Waluchows— Living Tree Constitutionalism’ (2010) 29(1) Law and Philosophy 93, 95. Wil Waluchow, A Common Law Theory of Judicial Review: The Living Tree (CUP 2008) 227. Alexander, ‘Waluchows— Living Tree Constitutionalism’ (n 52) 96. 212 Ibid, 96. 213 Ibid, 97. 214 See for example, Connie Rosati, ‘Alexander’s “Simple-Minded Originalism”’ in H Hurd (ed) Moral Puzzles and Legal Perplexities (CUP 2018). 210 211

Alexander also criticises the very notion of constitutional morality, as he suggests that the constitution does not necessarily represent any moral commitments on behalf of the community.215 Instead, the constitution should be viewed as the entrenchment of a certain set of values that were accepted by the majority of contemporary society at the time of ratification. Therefore, whilst the constitution may have been legitimised by the contemporary society, it surely cannot represent current societal morality. The living tree constitution therefore wrongly assumes that judges are better placed than representative bodies to understand constitutional morality, as the judges are tasked with deciding the current standards of morality.216 This will be analysed further below (section V). Leading on from this notion of constitutional morality, Waluchow argues that the common law creates a ‘humble message’ about the rights enshrined within the Charter.217 The humble message dictates that whilst there is uncertainty about morality within society, the rights currently enshrined are a ‘reasonable answer to the question of which moral rights deserve constitutional protection.’218 Waluchow states that the Charter is not ‘hubristic’ as it does not assert that the framers know for certain which moral rights count. The corollary of this is that the framers are not asserting that these particular rights are the only ones that need to be protected now and in the future.219 This argument is

215

Alexander, Waluchows— Living Tree Constitutionalism’ (n 52) 98. Ibid, 99. 217 Waluchow (n 1) 235. 218 Ibid, 236. 219 Ibid, 235. 216

tainted by all the aforementioned problems with the common law, such as its ability to self-perpetuate incorrect decisions and allow the judiciary to have the final say.220 However, the main issue is that the humble message is still not humble enough, as it entrenches one particular set of values in the constitution, providing a degree of fixity. This process does not properly respect disagreement, unlike the legislative process whereby representatives engage in debate advocating a variety of positions before finding a path to consensus. This argument is where the essay will turn next, further highlighting that judges are in fact no better placed to adjudicate on rights issues than the rest of society. Section V: Judicial Review Explicit within Waluchow’s theory is his belief that the judiciary is more trustworthy than elected representatives thus strong-form judicial review is needed to enforce a Charter.221 Waluchow believes that judges, and not legislators, are more likely to protect Charter rights.222 This pays insufficient respect to disagreement, as the differences of opinion between the judiciary and the legislature over the correct outcome in specific cases emphasises the presence of disagreement. The issue is therefore how to solve the disagreement so that difficult decisions can be made and society can continue to function. Many political constitutionalists, who Waluchow seeks to rebut with his thesis, argue that political equality and individual autonomy should be at the heart of

220

Alexander, ‘Waluchows— Living Tree Constitutionalism’ (n 52) 92. Waluchow (n 1) 244. 222 Ibid, 244. 221

constitutional law.223 This is supported by the prevalence of disagreement, as it highlights that the lack of an agreed right answer or a method of deciding which answer is correct prevents people demanding the constitution must lead to a certain substantive outcome. If there is no way to prove that one person’s opinion is any less valuable on moral issues than another’s then respecting equality must be paramount, which in turn promotes individual liberty. Strongform judicial review is the anthesis of this, as it favours the views of an homogenous, elite minority of society.224 Even Waluchow’s humble message suffers from this problem, as it relies on judges being able to better understand and reflect society’s view of morality – elected representatives who are drawn from a wider cross-section of society are better able to achieve this goal. Despite the criticisms advanced of Waluchow, he does effectively challenge Waldron’s assumption that the presence of disagreement necessitates majority decision-making, as if disagreement goes all the way down to the core then why assume that the method of identifying consensus would not also be affected by disagreement.225 This is the logical inconsistency within Waldron’s theory, as he cannot claim to respect disagreement and then arbitrarily make an exception for majority decision-making. Yet using political equality as the key tenet of political constitutionalism, whilst acknowledging that disagreement is an empirical truth within societal discourse is the best way to overcome Waluchow’s inconsistency criticism. Therefore, majority decision-making is the best way of curing the disagreement because it affords equal respect to each

223

See for example, John Griffith, ‘The Political Constitution’ (1979) 42 MLR 1; Adam Tomkins, Our Republican Constitution (Hart Publishing 2005). Griffith (n 66) 18. 225 Waluchow (n 1) 238. 224

individual and does not prioritise the views of an elite minority over the views of others. Waluchow suggests that without judicial review there will be tyranny of the majority, as elected politicians pander to the majority thereby neglecting the minority’s rights.226 However, just because an individual ends up in the minority does not mean that anything bad will necessarily occur. In order to have effective government, decisions need to be taken on contentious issues and thus a divide between a majority and minority position will be created. The real issue is if all voters are self-interested, and do not consider others when they vote, as this can disadvantage minority groups within society. Empirically, the chances of a self-interested voter actually making a change is so slim that if this is the aim they should not bother voting.227 Waldron believes strong-form judicial review is only needed in ‘non-core’ cases, where the topical majority, the majority of society whose rights are at stake, aligns with the decisional majority— the people whose votes bring about a certain decision.228 However, Waldron’s exception to his theory would only work so long as the judiciary is not imbued with the same biases as the majority of society.229 Thus, whilst the minority should be protected, Waluchow’s living tree constitution, which places all its faith in the judiciary, may not be the panacea. By highlighting the inherent flaws within judicial review, the foundations of Waluchow’s thesis are weakened, further emphasising the undesirability of his form of constitutional interpretation.

226

Ibid, 243. Anthony Downs, An Economic Theory of Democracy (Harper & Row 1957) 265. Waldron, ‘The Core of the Case’ (n 5) 1401. 229 Ibid, 1404. 227 228

Section VI: Conclusions In conclusion, Waluchow’s living tree metaphor seeks to create a form of interpretation that combines the benefits of the traditional view of Charters with the adaptability of the common law to allow the constitution to keep pace with changing societal morality. His thesis recognises that a Charter fosters a sense that a society is committed to rights protection by providing a measure of fixity. However, taken together these tenets actually prevent debate within society and lead to the ‘dead hand of the past’ constraining the development of the Charter. Waluchow’s thesis also relies on the flawed logic of deep consensus, which has been shown to be an inadequate premise to base his theory on, as it does not help solve moral issues. Waluchow’s theory also seeks to rely on the common law’s adaptability to allow the judiciary to incrementally develop the constitution in line with changes in societal morality. The wisdom of the common law actually transfers large amounts of power to unelected judges who are in no better position to make decisions on moral issues. This criticism also infects Waluchow’ heavy reliance on strong-form judicial review which has been shown to be undemocratic. Therefore, the foundations as well as the substance of Waluchow’s theory have been shown to be defective. The only conclusion that remains now Waluchow’s theory has been shown to be undesirable is that strong-form judicial review is not needed to safeguard constitutional law. Democracy’s ability to keep pace with changes in morality, whilst respecting the inherent disagreement within society, means that the political constitutionalist’s vision of the constitution is still safe for now.

“Among the Wholesome, if arid, expanses…”230 Land Law and Litigiousness in British African Settler Colonies Alexandra Breckenridge Introduction The encroachment of European colonialism in the late nineteenth century was not monolithic, and its methods varied greatly across the African continent. Within the British Empire, though, the imposition of colonial rule always coincided with the establishment of the English common law as the primary system from which rights could be derived. For liberal defenders of the British Empire, the export of English notions of the rule of law to Africa provided an important justification for expanding control over African people and their land. Prominently, John Stuart Mill called for the law to be used to train colonial subjects and “render them capable of a higher civilisation.”231 Paradoxically, though, the Millian, enlightened legal principles brought to Africa by the English common law -- private property and the franchise, especially -- were still deeply contested and fragile within Britain itself.232 British imperial law was, therefore, not a fully formed ideology of rights but, rather, a venue for the development of a nascent rights discourse in which -- through the selective use of common law and “customary” principles -- the law could be applied arbitrarily to racinated, colonial subjects.233 Even still, incipient colonial legal systems in Africa relied on the notion of private, landed property “as the quintessential context in which rights were constituted, conjured with, contested, and called into question.”234 The racialised and often inconsistent distribution and management of land by British colonial projects in Africa is, therefore, the best illustration of the hypocrisies embedded in colonial law.

230

Sol T. Plaatje, Sol Plaatje: Selected Writings, ed. Brian Willan (Johannesburg: Witwatersrand University Press, 1997), 347. This is Sol Plaatje’s description of native-owned lands in Bechuanaland, taken from 'The leadership cult from another angle', Umteteli wa Bantu, 14 March 1925. 231 John Stuart Mill, Considerations on Representative Government, Cambridge Library Collection - British and Irish History, 19th Century (Cambridge: Cambridge University Press, 2010), 317, https://doi.org/10.1017/CBO9780511783128. 232 Jean Comaroff and John L Comaroff, Of Revelation and Revolution: Christianity, Colonialism, and Consciousness in South Africa, vol. 2 (Chicago: Chicago University Press, 1997), 403. 233 Comaroff and Comaroff, 2:402. 234 Comaroff and Comaroff, 2:366.

In British settler colonies -- South Africa, southern Rhodesia, and Kenya, in particular -- the imposition of land law, via granting rights of tenure to white settlers, guaranteed a supply of cheap, African labour for the farms and the mines.235 By confining Africans to a fraction of the arable land -- and devising a separate system of customary or “Native” Laws -- British imperialism balanced its need to undermine the rights of native peoples with a high moral claim to enlightened, legal thinking. With the land lost, African leaders in settler colonies were forced to seek out new frontiers for political power; though the English common law had been used to deprive them of liberties, education in English law and religion became key tools for African elites resisting settler colonialism.236 Just as the land question was crucial for the development of British colonial law and politics, it has been “vital in many parts of Africa to the development and success of anticolonial movements.”237 This essay examines the complicated history of land law in British colonial Africa, beginning in the late nineteenth century. Within settler colonies, specifically, I argue that the common law did not extend to provide proprietary rights to Black Africans. Instead, by co-opting customary principles about land ownership and kinship, colonial regimes denied Africans the right to use property to transact commercially, while, simultaneously, guaranteeing a steady supply of cheap, migrant labor. In both its common law and customary formats, land law has been used both as a tool for colonial domination and by Africans resisting white minority rule. For better or worse, as South Africa, Zimbabwe, and Kenya confront the fragmented remnants of colonial land policies today, litigation remains a primary mechanism for effecting change. “When we opened our eyes, they had the land and we had the Bible”238 It has become a cliché to quote Jomo Kenyatta -- and sometimes, mistakenly, Archbishop Desmond Tutu -- on the land-grabbing antics of early British 235

Cheikh Babou, “Lecture: Chimurenga in Southern Rhodesia” (University of Pennsylvania, November 24, 2020). 236 Tembeka Ngcukaitobi, The Land Is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa, 1 edition (Penguin, 2018), 21. 237 Martin Chanock, “Paradigms, Policies and Property: A Review of the Customary Law of Land Tenure,” in Law in Colonial Africa, 1991, 61. 238 Editorial Board, “Corrections and Clarifications,” The Guardian, April 17, 2009, sec. News, http://www.theguardian.com/theguardian/2009/apr/18/corrections-clarifications. The full quote is as follows: “They taught us to pray with our eyes closed. When we opened our eyes, they had the land and we had the Bible.”

imperialism, which were always justified by a civilising mission to bring Christianity (and the law) to Africa.239 Kenyatta’s anecdote -- though, ironically, uttered by the patriarch of one of Africa’s most landed families -- is a pithy summary of a multi-decade project of economic and political transformation in the colonial period, begun by the creation of the notion of privately held property in Africa. An analysis of pre-colonial African conceptions of land and labour, and the ways in which these practices were undermined by colonial legal thinking, demonstrates the truth of Kenyatta’s claim. The British annexation of vast territories in Africa “followed Africans’ dispossession of their lands by white speculators, and more brutally by white mercenaries, after diamonds were discovered in the 1860s near Kimberley.”240 Through granting Royal Charters “formally recognizing the legality of the treaties made between merchant companies and African rulers” to companies based in West, East, and Southern Africa, the British government gave colonial speculators sovereign control over African lands.241 In Southern Africa, fierce competition for land rights motivated white settlers to exploit existing tensions between Africans, “resulting in prolonged frontier wars, where protagonists often shifted alliances.”242 The political integrity of chiefdoms with land close to industrial and mining hubs -- like Kimberley and Johannesburg -- was severely undermined by these protracted conflicts.243 But, for many African traditional leaders who retained their political power (including, for example, the Barolong chiefs of Bechuanaland) British officials issued vast areas of land as “protectorates,” often as the personal property of individual chiefs.244 These protectorates consisted of many farms and were known as native Reserves (whereas native “locations” were owned by colonial governments.) Sol Plaatje -- one of South Africa’s most important, early Black political leaders -- lived in Mafeking, Bechuanaland for some time, and found its “wholesome if arid expanses” to be greatly preferable to life within “the crowded slums around the shebeens of Cape Town and Port Elizabeth.”245

239

Editorial Board, “Corrections and Clarifications.” Khumisho Moguerane, “Black Landlords, Their Tenants, and the Natives Land Act of 1913,” Journal of Southern African Studies 42, no. 2 (2016): 244. 241 William H. Worger, Nancy L. Clark, and Edward A. Alpers, Africa and the West: A Documentary History from the Slave Trade to Independence (Oryx Press, 2001), 198. 242 Moguerane, “Black Landlords, Their Tenants, and the Natives Land Act of 1913,” 244. 243 Moguerane, 244. 244 Moguerane, 245. 245 Plaatje, Selected Writings, 347. 240

As British anthropologist Charles Meek explained in 1949, however, the policy of establishing native reserves was merely an attempt to “implement the principle laid down by the British Government in 1900… that sufficient land should, from time to time, be assigned for native occupation” in settler colonies.246 Through assigning land collectively to Black Africans -- by granting individual ownership rights to the rural aristocracy alone -- British colonial projects denied ordinary Africans their basic rights under the common law.247 For Martin Chanock, this imposition of a new state order in Africa can be traced back to “legal changes first in the realm of the 'law of persons', and subsequently in changes in the 'law of property'.”248 Rights of things and rights of persons, Chanock explains, became systemically divided in Western legal thinking during the trans-Atlantic slave trade. By contrast, pre-colonial African societies mostly viewed rights and duties over people and property through the same logical framework.249 In these societies, with an abundance of land, the most important economic claims were over rights related to the labor of others -- often organized through African traditional religions, with specific duties assigned to people based on kinship, age, gender, and other statuses.250 With the imposition of colonial rule, and Africa’s entrance into the global capitalist order, proprietary rights over things -- and land, especially -- became the primary sources of economic and social power in African societies. British colonial administrators’ early understandings of long-established, African principles governing land tenure were limited, mostly aligning with a theory of property’s “natural evolution, leading up to individual ownership” as set out by Lugard in his Dual Mandate in Tropical Africa.251 This theory, supported by the thesis of Frederick Engels in The Origin of the Family, Private Property and the State, posited that “when the pressure of population has given to the land an exchange value, the conception of proprietary rights in it emerges, and sale, mortgage and lease of the land… is recognized.”252 For early colonial 246

C. K. Meek, Land Law And Custom In The Colonies, 1949, 121, http://archive.org/details/in.ernet.dli.2015.54425. 247 Comaroff and Comaroff, Of Revelation and Revolution, 2:367. 248 Martin Chanock, “A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa,” Journal of African History 32, no. 1 (1991): 66. 249 Chanock, 66. 250 John Iliffe, ed., “The Comparative History of the Poor,” in The African Poor: A History, African Studies (Cambridge: Cambridge University Press, 1987), 1–8, https://doi.org/10.1017/CBO9780511584121.002. 251 Frederick John Dealtry Lugard, The Dual Mandate in British Tropical Africa, 1921, 281, http://www.archive.org/details/cu31924028741175. 252 Lugard, 281.

officials, therefore, Africans’ communal, relatively egalitarian use of the land represented a lack of civilisational advancement.253 Because of this chauvinist view, “the expropriation of communal lands was far more easily politically and legally accomplished... than the expropriation of individuals’ rights” under the English common law.254 Many British colonial administrators argued that the instantiation of private property laws in Africa merely represented a spedup approach to a trend in the direction of individual ownership that was always inevitable for African societies. Land as Social Status and the Development of Customary Law The colonial commodification of land and labor power (after the emergence of migrant labor, especially in the settler colonies) eroded long-established norms of communality and kinship within African societies.255 Previously self-reliant communities became “increasingly dependent on commodity relations and caught up in a struggle for control of labor power between generations.”256 Out of this inter-generational struggle for power, Chanock argues, new notions of African land customs -- and, later on, customary law -- emerged. The rights of elders, instead of shaping norms governing young people’s labor duties, began to be asserted within a “different part of the new legal realm, that of the law of property.”257 This new, customary law of property was expansive, covering “the shifting and uncertain structure of the law of marriage, succession, and family property generally.”258 In responding to familial disputes about marriage and property, emerging customary laws conveniently dealt with legal dilemmas which remained unresolved within both civil and common law jurisdictions in Europe.259 Customary law, thus, developed in African societies against a historical background in which Africans themselves increasingly disagreed about what could be considered a commodity. Established societal hierarchies were giving way to new economic and social orders in which land ownership became the

253

Comaroff and Comaroff, Of Revelation and Revolution. Chanock, “A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa,” 70. 255 Chanock, 67. 256 Chanock, 67. 257 Chanock, 68. 258 Chanock, 68. 259 Comaroff and Comaroff, Of Revelation and Revolution, 2:365. 254

material basis of life.260 With the encroachment of white settlers, burgeoning African populations, and the prospect of colonial regulation of land use, customary principles of land tenure developed in Africa out of a feeling of a growing scarcity of land -- this new economy’s most important resource.261 Meek -- a great believer in the innate value of African customary law -lamented that “in Kenya, as elsewhere in Africa, native customary law has been affected by the introduction of commercial crops and a money economy, and by the pressure of population on the land.”262 Yet, even with these rapid innovations in the way Africans thought about the ownership, distribution, and use of land, without the bureaucratic, legal regime of the colonial state, “a shift towards proprietary title could not take place.”263 With the early colonial “advent of European authority and consequent disintegration of tribal rule,” as Sol Plaatje argued in 1925, in the newspaper Umteteli wa Bantu, hereditary social status claims of African aristocrats began to depend on these newly developing, customary principles of land ownership.264 Simultaneously, towards the end of the nineteenth century, the British colonial state began to provide bureaucratic mechanisms for distributing property and processing land claims -- often, by incorporating customary principles into the common law sphere. Native Court systems emerged out of the demand to combine customary and common law principles, and many Africans began using these courts as crucial venues for disputing land claims and attempting to leverage power.265 Though, in the face of encroaching colonial control, Africans’ development of customary, hereditary claims to land was unavoidable, the view of land-ownership as an indicator of social status prevented the development of African conceptions of individual or commercial land claims. For Chanock, a transition to African land ownership via legal contracts -- and, by extension, African participation in commercial markets -“could not be accomplished as long as the material basis of life, access to land, depended on Status.”266 260

Chanock, “A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa,” 69. 261 Chanock, 72. 262 Meek, Land Law And Custom In The Colonies, 117. 263 Chanock, “A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa,” 74. 264 Plaatje, Selected Writings, 347. 265 Chanock, “A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa,” 77. 266 Chanock, 87.

In British settler colonies, with high levels of white land-ownership and Africans’ “integration into a white economy,” disputes over property rights took place “at the border of two legal systems” -- African customary law and the common law.267 Through the creation of a sphere of ‘native administration,’ colonial officials became empowered to intervene directly in African disputes over kinship and property rights.268 Yet, British colonial governments -especially in East and Central Africa -- argued that market behavior and access to credit were “unnatural and inappropriate for Africans,” and consequently failed to create any “usable commercial customary law.”269 As African markets developed in the early twentieth century, customary land law was used as a tool for colonial control over trading in rural areas, almost always preventing Africans from accessing the individual tenure rights necessary for commercial activity other than subsistence farming.270 It is clear, therefore, that the colonial adoption of customary laws which were “produced in the circumstances of initial dispossession and confinement” supported the economic subjugation of Africans at the turn of the century, even though they initially had been developed by “African communities as an apparent defense against further land loss.”271 Land Law and Segregation in Settler Colonies In the early twentieth century, British colonial officials began a process of territorially segregating African states, and installing “the colonial government as the ‘supreme chief’ and principal landlord” within rural, Black African areas.272 Native Court systems had already begun dealing with intergenerational property disputes in rural areas in the nineteenth century, through applying a set of basic principles that subordinated sons' rights to property to their fathers' and guaranteed that women, as perpetual minors, could not own property.273 By 1900, for landed African aristocrats -- including the important example of the Barolong chiefs of Bechuanaland -- the courts had become enormously 267

Chanock, 77. Moguerane, “Black Landlords, Their Tenants, and the Natives Land Act of 1913,” 244. 269 Chanock, “A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa,” 82. 270 Chanock, 82. 271 Chanock, “Paradigms, Policies and Property,” 62. 272 Moguerane, “Black Landlords, Their Tenants, and the Natives Land Act of 1913,” 243. 273 Chanock, “A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa,” 79. 268

important venues for resisting the incursions of colonial officials and white settlers. As Khumisho Moguerane shows, however, the litigiousness of these landed chiefs proved insufficient in resisting the encroachment of territorial segregation in early twentieth- century settler colonies.274 Prior to the introduction of major segregative legislation in settler colonies African landholding (though always presented as a communal enterprise, in the interests of all members of a given polity) presented “some routes for private accumulation, especially for chiefs.”275 African commoners -- though not charged rent for living on native reserves -- generated wealth for chiefs and other patriarchs in a variety of ways. The hierarchical control of tenants’ labor by chiefs was implied, such that commoners were expected to tend to livestock and plough fields on behalf of the landowning class.276 Additionally, by the end of the nineteenth century, landowning chiefs had begun leasing areas of land to “foreigners,” including white settlers.277 By the turn of the century, in Mafeking and its surrounding areas of Bechuanaland, intermarriage between races was not uncommon, and -- in direct opposition to the increasingly segregationist politics of British colonialism -- racial categories were ambigous.278 Despite their accumulated personal wealth from land-ownership, chiefs still “defended their relatively private control of land through the language of communal ownership” at the start of the twentieth century.279 Yet, following the political upheaval of the Boer war, Black landowners began to face serious challenges to their economic positions by British colonial authorities. Officials in the Cape, beginning in 1905, argued that British Bechuanaland was subject to the same, segregative legislation -- including the Natives Location Act of 1884 -- as the Black locations outside white urban areas.280 The chieftaincy fought bitterly against these incursions on their power as landowners, working with Sol Plaatje and the South African Native National Congress (the ANC’s predecessor) to file an appeal within the Supreme Court in Cape Town in 1910. This legal appeal argued for the continued right of Barolong chiefs to control

274

Moguerane, “Black Landlords, Their Tenants, and the Natives Land Act of 1913,” 247. Moguerane, 247. 276 Moguerane, 248. 277 Moguerane, 248. 278 Khumisho Moguerane, “Black Landlords, Their Tenants, and the Natives Land Act of 1913,” Journal of Southern African Studies 42, no. 2 (2016): 248. 279 Moguerane, “Black Landlords, Their Tenants, and the Natives Land Act of 1913,” 248. 280 Moguerane, 254. 275

and profit from their ancestral land.281 Plaatje and the SANNC -- despite Plaatje’s suspicions of hereditary claims to power -- began a broad campaign to protect the Bechuanaland chieftainship, viewing resistance to Barolong rule as a step in the direction of implementing full-blown segregation in colonial South Africa.282 The cause of Barolong landowners was of special interest to Plaatje, who was Tswana-speaking and saw himself as a “member of this tribe.”283 In his campaigning journalism (as well as through legal and political avenues) he defended their right to own and control Bechuanaland, pointing out that, in the early twentieth century, “some of the Barolong cultivated their lands to such good effect that they reaped as much as 3,000 bags of wheat in several places while their Boer neighbours reaped from 200 to 500.”284 Yet, in 1912 -with the appointment of a new Minister of Native Affairs, J. B. M. Hertzog -“the chiefs’ plea that the rents be paid into the chieftaincy’s coffers was refused.”285 The Barolong’s lengthy litigation and political campaigning had failed: beginning in 1912, “rents accruing from… traders and others in the Bechuanaland reserves” would have to be paid directly to the Union government.286 The Barolong chiefs lodged one final appeal at the Supreme Court in early 1913, with W.P. Schreiner -- who believed that the “appeal held consequences for other Africans” -- litigating their case.287 On June 9, 1913, just a day before the Barolong were due to return to court, the Natives' Land Act was passed by both Houses of Parliament. This Act marked the beginning of an ambitious, segregationist new legal system in the Union of South Africa. Its primary purpose was to “deprive Africans of the right to acquire land outside their existing areas of occupation,” which became designated as “Scheduled Native Areas,” in which white tenancy would also be banned.288 These areas made up less than one tenth of the land of the Union of South Africa, but the Barolong Reserve was included among them. Despite continued pleas, asserting that “the 281

Moguerane, 253. Moguerane, 256. 283 Plaatje, Selected Writings, 320. This quote is taken from 'The case for the Barolongs: Tribe's relations with the voortrekkers', Cape Argus, 4 March 1924 284 Plaatje, 322. 285 Moguerane, “Black Landlords, Their Tenants, and the Natives Land Act of 1913,” 256. 286 Moguerane, 256. 287 Moguerane, 258. 288 Plaatje, Selected Writings, 124. 282

Barolongs have not been conquered by anyone,” and, by extension, ought to have sovereign rights over their land, the Natives’ Land Act empowered the colonial government to intervene directly in the reserve.289 Following the passage of this landmark statute of territorial segregation -- and with the continued effects of racialized controls over commercial behavior -wage labor “under forced and oppressive conditions” became the only economic channel for Black South Africans.290 For Plaatje, whose 1916 Native Life in South Africa is the most important account of South African Black life during this period, the act “deprived [Africans] of the bare human rights of living on the land, except as servants in the employ of the whites.”291 The uneven, customary application of land law -- which had, for a period, benefitted a marginal group of aristocratic Africans -- culminated in the creation of segregated, distinct systems of property ownership for whites and Blacks, in which Black Africans were confined to migrancy and overcrowded slums. Similarly segregative laws were passed in the other British settler colonies in the early twentieth century. In Southern Rhodesia in 1930, for example, the Land Apportionment and Tenure Act made it illegal for Africans to purchase land outside of established “Native Purchase Areas” and gave half of the country’s landmass to its tiny fraction of white settlers.292 In Southern Rhodesia, as in South Africa, Black people were confined to farm on “overcrowded, overexploited, and overgrazed reserve land.”293 The racialised restriction of land ownership -- as the material basis of life, and the primary context in which rights were constructed -- meant that the native African “found himself, not actually a slave, but a pariah in the land of his birth.”294 Conclusion: Contemporary Land Reform and Development Politics Though many prominent African leaders attempted to seek out legal remedies to the economic and social predicaments caused by territorial segregation, it was tremendously difficult to do so during the colonial period. As Chanock 289

Moguerane, “Black Landlords, Their Tenants, and the Natives Land Act of 1913,” 259. Chanock, “A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa,” 84. 291 Solomon T. Plaatje, Native Life in South Africa (Johannesburg: Ravan Press, 1982), 23. 292 Babou, “Lecture: Chimurenga in Southern Rhodesia.” 293 Babou. 294 Plaatje, Native Life, 16. 290

demonstrates, “not only [had] people been deprived of full land rights in terms of the dominant, imported legal system, the dominant system [had] distorted the rights recognizable and assertable in the customary one.”295 As Ngcukaitobi shows, too, radical Black lawyers -- especially those fighting for land law reform -- in the early twentieth century realized quickly that “without equality before the law, the rule of law could be turned into an instrument for rule by the powerful.”296 By the mid-twentieth century, with the demise of most European colonies, postcolonial African leaders found themselves “in a position to take… advantage of state encouragement of capitalist agriculture, and consequently it was the poorer farmers who were thrown back on a defence of 'customary' rights”297 Polarizing class differences -- between rich and poor, rural and urban -- were, “submerged in nationalist politics towards the end of the colonial period, and subsequently by the ideology of development.”298 Post-colonial African states often relied on the communal imagery of customary land law in articulating their development politics. In Tanzania, Julius Nyerere argued that “to us in Africa, land was always recognised as belonging to the community.. The African's right to land was simply the right to use it…”299 By contrast, in Malawi, President Banda argued -- before its newly independent Parliament in I967 -- that the absence of individual title hindered African development: “Noone is responsible for the uneconomic and wasted use of land because no-one holds land as an individual. Land is held in common.”300 With bilateral and unilateral international organizations pushing African states to begin individually titling land, custom has sometimes become “an ideological resource in resistance to development based land-tenure politics, a resource of the dominated, not the dominators.”301 Particularly in former British settler colonies, customary law regarding land ownership retains special political significance, more than a century after its inception. In Kenya, following a high period of land law reforms in the 1990s, the state has aimed, 295

Chanock, “Paradigms, Policies and Property,” 82. Ngcukaitobi, The Land Is Ours, 253. 297 Chanock, “A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa,” 72. 298 Chanock, 72. 299 Chanock, “Paradigms, Policies and Property,” 80. 300 Chanock, “A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa,” 71. 301 Chanock, 72. 296

with difficulty, to phase out customary land law, and begin meaningful individualization of land tenure.302 In South Africa, many of the most significant political debates relate to the persisting racialization of land distribution, and our Land Claims court system is perpetually overwhelmed. Though legal avenues remain the primary tool for dealing with questions of land distribution, land law reform in post-colonial Africa has rarely resulted in meaningful, grassroots change for ordinary Africans. In addressing the dire need for redistributive politics in Africa, states should remember Bentham’s claim that “property and law are born together and die together” on the continent.303

302

Patrick McAuslan, Land Law Reform in Eastern Africa: Traditional or Transformative?: A Critical Review of 50 Years of Land Law Reform in Eastern Africa 1961 – 2011 (Routledge, 2013), 16. 303 Comaroff and Comaroff, Of Revelation and Revolution, 2:366.

Epistemological Limits: The Inability of International Law to Confront the Climate Crisis Emma Kennedy Anyone following the COP26 negotiations will have realised that radical changes to energy production and consumption are key to confronting the climate crisis. No less important however, but far less explicitly verbalised, is the need to interrogate the underpinnings of international law (“IL”). Only by understanding its epistemological limits is it possible to determine how, instead of providing us with a means to confront the climate emergency, IL has played a significant role in perpetuating the conditions in which the crisis germinated. The Oxford English Dictionary defines epistemology as ‘the theory of knowledge and understanding, especially with regards to its methodology, validity and scope […]’.304 IL’s epistemology will thus be analysed to demonstrate the limits of its potential to deal with the catastrophe we face. This will be done first through a review of the methods by which IL facilitates the exploitation of the natural world; secondly through an examination of how this facilitation came to be accepted as valid, and thirdly by looking to the scope (or lack thereof) of IL to deal with the climate crisis given the conditions it perpetuated. Such an analysis will demonstrate how IL has shaped our understanding of humankind’s relationship with the natural world; a relationship which requires refocusing and rebalancing to confront climate change. Methodology - How has IL characterised the world? IL has been used by states as an instrument to divide an unruly natural world into tidy jurisdictional zones:305 to paraphrase the poet, Seamus Heaney, IL has been used to ‘dig’, first on paper and then on soil. These diggings have been predicated on the value of territory to mankind - ‘[IL’s] mental map of the planet resolutely places certain narrowly defined human interests in the 304

Oxford English Dictionary; available online at https://www.oed.com/view/Entry/63546?redirectedFrom=epistemology#eid Surabhi Ranganathan, ‘Sea Change’ in A. Brett, M. Donaldson and M. Koskenniemi (eds), History, Politics, Law: Thinking through the International (Cambridge University Press, 2021)

305

centre around which the meaning of other spaces is organised’.306 By choosing human utilisation as the basis for dividing the globe, colonising states could justify their expansion over “unclaimed” territory. The historical doctrines of terra nullius and terra communis demonstrate this moulding of the world: states could claim land if was occupiable but not being occupied to a “sufficient” extent. IL thus provided that territory was tied to the value it could provide mankind. This conception of territory cannot be characterised as “purely” anthropocentric in that the value extracted was not intended for the benefit of mankind as a whole. Rather, it was extracted for the benefit of dominant actors. Even natural areas supposedly beyond reach, the “free seas” for example, were typified on such a basis. The full title to Grotius’, The Freedom of the Seas (The Freedom of the Seas Or, The Right Which Belongs to the Dutch to Take Part in the East Indian Trade) demonstrates this distorted conception of territory. Grotius’ magnum opus is not a call for the oceans to be left untrammelled by humankind but an argument that they be left free from the traditional trappings of sovereignty so that colonisers were guaranteed free passage to access riches around the globe. This focus on what nature can offer humankind remains embedded in IL. The more contemporary concept of the Common Heritage of Mankind is less of a ‘meaningful alternative to traditional jurisdictional categories’ than a rebranding exercise for a postcolonial era.307 Article 137 of United Nations Convention on the Law of the Sea for example, provides that the resources of the seabed beyond areas of national jurisdiction are vested in mankind as a whole ‘on whose behalf the Authority shall act’. The Authority was originally envisaged as a genuinely equitable body which would mine resources on behalf of the international community as a whole and which would be governed by a democratic Assembly consisting of all state parties (meaning developing states would be in the majority). Instead, the Authority actually operates ‘squarely on commercial principles’308 favouring developed states and their technologically superior mining industries due to a 1994 amendment.309 This amendment was driven by these same authoritative actors 306

Karin Mickelson, ‘Maps of International Law: Perceptions of Nature in the Classification of Territory’ (2014) 27 LJIL 621, 639 307 Ibid 636 308 Ranganathan (n 2) 655 309 Agreement for the Implementation of Part XI

as their price for coming on board. Territory, even the “common heritage of mankind” thus cannot just “be” but instead must be defined as a resource to be exploited by those with the capacity to do so. By choosing this extractive paradigm as the basis upon which territory is valued, IL ‘[silences] other possibilities: other geographies, other economic imaginaries and indeed other epistemic understandings’.310 Validity - Why was this division accepted? IL has therefore provided for an ‘all-encompassing’ carving up of the world into jurisdictional zones.311 The acceptance of such a conception of the world stemmed from the endowment of sovereign rights onto states which meant that they could ‘[claim], [actualise] and [exercise] lawful authority’ over the territory under their control.312 This lawful authority encompasses the right to exploit natural resources.313 Our depleted world, the tragedy of our ‘great commons’, has therefore ironically come about through the division of the world into areas under hegemonic control. 314 Given thus that IL utilised sovereignty as justification for the expansion and exploitation of territory, sovereignty became a goal in itself. Colonies sought statehood through the medium of IL; the same medium which had been originally leveraged by powerful states to claim territory as colonies.315 While this paradox was recognised and indeed challenged in the 1970s by the New International Economic Order movement, the international order remained fundamentally unchanged.316 The existing hegemons retained their ascendancy, due partly to the fact that the third world ‘saw itself compelled to fight the battle within the normative language of the colonizers’ - an IL constructed ‘by colonial powers in order to exclude and dominate nonEuropean nations’.317 310

Surabhi Ranganathan, ‘Decolonisation and International Law: Putting the Ocean on the Map’, (2021) 23 JHIL 161, 180 311 Mickelson (n 3) 622 312 Sundhya Pahuja, ‘Laws of Encounter: a jurisdictional account of international law’ (2013) 1 LRIL 63, 74 313 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Judgement, Merits [2005] ICJ Rep 168 314 Ranganathan (n 2) 315 Jochen von Bernstorff and Philipp Dann, ‘An Introduction’ in J. Bernstorff and P. Dann (eds) The Battle for International Law: South- North Perspectives on the Decolonisation Era (Oxford University Press, 2019) 316 Antony Anghie, ‘Legal Aspects of the New International Order’ (2015) 6 Humanity 145 317 Bernstorff and Dann (n 11) 26

IL perpetuated this inequality by spinning a web around colonial interests; for example, decolonised states found their natural resources retained by foreign corporations of coloniser origin whose rights were conveniently protected by transnational law.318 Just as concepts such as terra nullius “justified” colonialism, other IL theories thoroughly embedded these exploitative patterns. Even procedural rules of IL perpetuate this paradigm: the two principal sources of IL, treaties and state practice,319 cannot be amended without the consent of the states involved. Given that IL was formulated when third world states were not at the table, Western states could subsequently offer these states a seat while retaining the power to prevent any threats to their authority. Third world countries did therefore not so much choose this legal system as it was chosen for them. Initially through sheer force, European states writ large their epistemological conception of sovereignty and jurisdiction. States which were then created within this system became bound by the accompanying rules which are still used to maintain this power structure, perpetually capturing the world in the thrall of tradition.320 IL was used as a tool to legitimise the division of the world and to justify the maximum extraction of natural resources to the benefit of a dominant few. The façade of formal equality proffered by the concept of sovereignty was supplemented by a development paradigm proffered as a means to reach substantive equality. Economic growth was framed as an indicator of progress, a measure of civilisation and modernity, and became ‘lodged at the heart’ of the conception of statehood.321 Thus the artificial construction of statehood was embedded in the global consciousness and favoured over the reality of the physical world.322 IL created the conditions for its own validity and has reinforced itself against challenge by permitting only incremental changes to

318

Anghie (n 13) Article 38(1), Statute of the International Court of Justice Julia Dehm, ‘Carbon Colonialism or Climate Justice: Interrogating the International Climate Regime from a TWAIL Perspective’, (2016) 33(3) Windsor Yearbook of Access to Justice 129 321 Pahuja, (n 8) 80 322 Surabhi Ranganathan, ‘Ocean Floor Grab: International Law and the Making of an Extractive Imaginary’ (2019) 30 EJIL 573 319 320

its rules. In the face of climate disaster however, ‘incremental… changes to the...socio-economic system’ will not be sufficient to stabilise the planet.323 Scope of IL to confront a common problem Having successfully sold this conception of development and maximisation of resource exploitation to third world countries as a means of reaching the equality so long denied, developed countries now seek to amend this narrative. Resources are being reframed, not as a central aspect of state sovereignty, but as common property - thus they are removed from the ‘state’s exclusive jurisdiction’ and made ‘a legitimate matter for international regulation’.324 This reframing fails to account for two matters: that it is the developed states who have accounted for the greatest historical amount of greenhouse gas emissions while IL, by emphasising exploitation as the means by which territory is claimed, has led to states insisting upon their sovereign right to deal with their resources as they so choose. The first matter - the responsibility of developed states for their share of climate damage - has not been completely ignored: many international agreements for example contain the “Common but Differentiated Responsibilities” principle (for example, Principle 7 of the Rio Declaration on Environment and Development). More recent environmental treaties however have moved away from such an explicit formulation of this burden differentiation towards ‘regime[s] of flexibility’ where countries can individually determine their responsibilities (such as the 2015 Paris Agreement).325 This ‘erosion’ of differentiation in responsibility suggests a perpetuation of equality rather than equity.326 In addition, the peddling of discourse around third world development and population growth deliberately

323

Will Steffen, Johan Rockström, Katherine Richardson, Timothy M. Lenton, Carl Folke, Diana Liverman, Colin P. Summerhayes, Anthony D. Barnosky, Sarah E. Cornell, Michel Crucifix, Jonathan F. Donges, Ingo Fetzer, Steven J. Lade, Marten Scheffer, Ricarda Winkelmann, Hans Joachim Schellnhuber, ‘Trajectories of the Earth System in the Anthropocene’ (2018) 115 (3) Proceedings of the National Academy of Sciences 8252 324 Dehm, (n 17) 147/148 325 Lavanya Rajamani, ‘The changing fortunes of differential treatment in the transition to the Anthropocene’ (2012) 88(3) International Affairs 605, 617 326 ibid 618

drowns out challenges to historical patterns of uneven distribution of consumption, power and wealth.327 Furthermore, as noted, IL granted sovereignty over natural resources as an indispensable attribute of statehood. Any calls for regulations around the use of such resources can thus be understood as infringing upon statehood, as constituting ‘new forms of supranational regulation’ to ‘[disempower] the nonEuropean world’.328 That is not to say that this is not the case, however it is to simply note that the development narrative has led to the environment being characterised as a debate forum for North South tensions. Climate issues have become a site of conflict despite being rare issues with a genuine global impact. Global warming is a problem which requires global unity, yet IL facilitated the carving up of the globe. To skirt this fundamental tension is to craft a narrative of commonality presupposing cooperation. Looking to the world as a whole for a unified response is but to look to an ‘imagined aggregate’ in the place of relationships of inequality which IL cultivated and reinforced.329 Conclusion This essay has argued that the epistemology of IL does not lend itself to dealing with the climate crisis. In fact, IL is compromised in its scope to deal with climate disaster given that it provided legitimacy for the practices which have brought us to this precipice. It has locked in development as the pathway to equality. It individualised commonality. To recede from this edge, change is required. It must be recognised that the law does not simply govern ‘in some detached and transcendent way’ but bears the fingerprints of those who moulded it.330 Although the climate crisis appears to be one of the foremost issues in contemporary global consciousness, there is no guarantee that the radical changes needed to confront it (which must contend with ‘the history of greenhouse gas emissions’ and ‘the history of IL’ 331) will be enacted. Previous 327

Diana Odeja, Jade Sasser and Elizabeth Lunstrum, “Malthus’s spectre and the Anthropocene”, (2018) Gender Place and Culture 1 328 Dehm (n 17) 149 329 ibid 146 330 Pahuja (n 9) 93 331 Dehm (n 17) 143

challenges to the epistemology of IL have failed. One potential difference this time may be that nature simply demands to be centre of the narrative: if Chandler’s understanding of the dawn of the Anthropocene is correct, humankind can no longer take a detached, top-down approach to nature, imposing social constructs onto the physical, but will be forced to have a more holistic conception of their role within the natural processes.332

332

David Chandler, ‘Planetary Boundaries and Governance Mechanisms in the transition to the Anthropocene, (2018) Special Issue 1 REPATS Brasilia 21

Protecting Migrants Under Article 8: Destined to Disappoint? Rachel Lane The absence of any reference to migrants in Article 8 demonstrates that it does not explicitly purport to protect their rights. Instead, the evolution of the European Convention on Human Rights (ECHR) as a living document has resulted in the acknowledgement that the notion of ‘everyone’ mentioned in Article 8 encompasses migrants as potential applicants. However, it will be argued that the absence of an express textual mention of migrants has contributed to a cautious approach by the European Court of Human Rights (ECtHR), who fear intruding into areas as politically sensitive as migration as it may provoke a ‘damaging reaction’ from states (Bates).333 Consequently, a conceptual framework has been designed by the Court which encompasses three concepts invoked only in a migration context. All three ensure the inevitable failure of Article 8, with the most potent concept being that of state sovereignty which is both an independent consideration as well as a principle which guides the application of ‘core’ or ‘nuclear’ family and ‘integration’. As a result, Article 8 is destined to fail by judicial design. State Sovereignty Article 8 is destined to fail in a migration context due to excessive judicial concern over the protection of ‘state sovereignty’. This is exemplified through the default position set out by the ECtHR that prima facie ‘states are entitled to control the entry of aliens into its territory and their residence there’ (Unuane v UK).334 For Dembour,335 state sovereignty is placed ‘centre stage’, thus relegating the Article 8 right to the status of an exception. Caselaw supports this proposition, with the ECtHR attempting to discern in each case whether the rights of the migrant disproportionately interfere with a state’s ‘community interests’336 with the burden being placed on the migrant to disprove this and so fall within an exception to absolute state sovereignty. Similarly, the description of migrants as ‘aliens’ depicts such individuals as a threat to state 333

Edward Bates (2020): Strasbourg’s integrationist role, or the need for self-restraint?. University of Leicester. Journal contribution.v1 334 App no 80343/17 (ECHR, 24 February 2021) [70] 335 Marie Bénédicte Dembour (2015): When humans become migrants: study of the European Court of Human Rights with an inter-American counterpoint (1st ed.). Oxford University Press. 336 App no 41215/14 (ECHR, 14 September 2017) [74]

sovereignty and presents them as ‘others’ who are undeserving of the protection of ‘human’ rights. Hidden beneath this linguistic choice is a judicial desire to limit the scope of Article 8 and prevent its extension to these ‘others’. This is reflective of Lord Sumption’s337 analysis that the evolution of human rights should result from political will rather than judicial activism. As such, the ECtHR is cautious to ensure that states do not feel bound by a right that they did not sign up for, and thus compensate this through excessive deference to state sovereignty. It becomes easy for states to argue that the protection of ‘others’ is a disproportionate burden, and thus Article 8 is emptied of its protective force in a migration context. This deference is problematic as it is based upon the fallacy that Article 8 is being used to recognise a ‘right to migration’ which threatens a state’s control over its own borders. Article 8 does not explicitly purport to protect migrants as a named category but instead recognises that ‘everyone has the right to respect for his private and family life’. The word ‘everyone’ implicitly includes migrants, thus such extreme deference to state sovereignty when the applicant is a migrant is discriminatory and frustrates the protective intention of Article 8 as constructed by the states themselves. Moreover, deferring to national political processes in order to respect state sovereignty, as advocated for by Lord Sumption, ignores the role of the ECtHR as a guarantor of human rights. Migrants often lack the voting rights and social power necessary to influence national politics, therefore Article 8 may be their only means of influencing the immigration decisions which affect their lives so deeply (Farahat et al).338 However, by reconstructing the conceptual framework of Article 8 in a migration context as one which places state sovereignty at its centre, the ECtHR abandons its traditional role and ensures Article 8 is destined to fail when relied upon by migrants. Core or Nuclear Family The narrowly defined requirement of ‘core family’ poses no issue in the context of deportation where the right to private life can be relied upon (Slivenko v Latvia).339 However, in reunification cases where reliance upon 337

Lord Sumption (2013): The Limits of Law. 27th Sultan Azlan Shah Lecture, Kuala Lumpur Battjes, Hemme & Dembour, Marie & de Hart, Betty & Farahat, Anuscheh & Spijkerboer, Thomas & Walsum, Sarah. (2009). The European Court of Human Rights and Immigration: Limits and Possibilities. European Journal of Migration and Law - EUR J MIGR LAW. 11. 199-204. 339 App no 48321/99 (ECHR, 9 October 2003) 338

private life is excluded, this concept imposes an insurmountable hurdle to admissibility. Noticeably, the qualitative dimension of ‘core’ or ‘nuclear’ is imposed only in cases concerning migrant applicants in order to ensure the inevitable failure of Article 8 claims. Again, this is driven by an overriding concern to respect state sovereignty and thus prevent the expansion of Article 8 into a ‘right to migration’ to which the states did not consent. Ironically, the narrow conception of ‘core family’ fails to account for the variation of family life across Europe and so arguably undermines the sovereignty of certain states expecting Article 8 to cover their conception of a ‘family’. As argued by Judge Kovler in his dissent in Slivenko v Latvia,340 the tradition of the ‘extended family’ is so central a feature of life in some European countries that it enjoys constitutional recognition. Surely the failure to respect such national constitutional norms undermines the rigour with which the ECtHR purports to protect state sovereignty. The current conception of ‘core family’ which limits admissibility is again another example of the conceptual framework which has been judicially constructed in a migration context which ensures Article 8 is destined to fail. Furthermore, the strictly interpreted notion of ‘core family’ has ensured the failure of meritorious applications by migrants. For example, the elderly and disabled mother living with her daughter for many years in Senchishak v Finland341 did not qualify as ‘core family’, despite it being argued that there is no closer bond than that of parent and child. This decision was evidently influenced by the fact that the mother had overstayed her visa, with Finland being concerned that affording her protection would create the wrong incentive in an immigration system for people to overstay visas and then submit a ‘family life’ claim. Evidently, the ECtHR were keen to defer to the State’s concerns and did not want to force it to accept an illegal ‘alien’ within their territory (as per the Unuane discussion). However, as argued by Draghici,342 this concession to state sovereignty through the consideration of immigration policy should not have been made at the admissibility stage but instead balanced under the proportionality assessment. Draghici is surely correct in that the illegality of the mother’s stay does not mean she was not a 340

App no 48321/99 (ECHR, 9 October 2003), Partly Concurring and Partly Dissenting Opinion of Judge Kovler 341 App no 5049/12 (ECHR, 18 November 2014) 342 Carmen Draghici, Adult Children and Elderly Parents in Strasbourg Proceedings: A Misconstrued Approach to ‘Family Life’, International Journal of Law, Policy and the Family, Volume 32, Issue 1, April 2018, Pages 42–62

‘core family’ member, as it does not alter the dynamics of their relationship, rather it affects the legitimacy of the interference with her rights. If the ECtHR is so keen to pacify states and refrain from forcing upon them a duty to respect a right to which they did not consent, this should be considered under the proportionality assessment as it has no bearing on the existence of a factual question, namely whether ‘family life’ is present. Moreover, the hurdle this imposes at the admissibility stage is absent when Article 8 is relied upon in contexts other than migration. For example, in a testamentary context the relationship between an adult adoptive grandson and his grandmother’s estate was considered sufficient to engage ‘family life’ (Pla and Puncernau v Andorra).343 This exemplifies that Article 8 does not need nor require restrictive concepts such as ‘core’ or ‘nuclear’, and this additional hurdle is constructed purely for migration contexts by the ECtHR in order to pay some misplaced homage to state sovereignty. The protective scope of Article 8 is destined to fail when the Court intentionally misconstrues its terms when applying them to migrants. Integration The concept of integration has been constructed by the ECtHR as another mechanism to defer to state sovereignty and ensure that Article 8 is destined to fail when applied in a migration context. Farahat344 explains this concept as encompassing two considerations: social ties to the host state and social ties to the country of origin, with the ECtHR choosing whichever strand is necessary to justify state interference with the family or private life of a migrant. Evidencing this is a stream of caselaw where the flexibility of the notion of ‘integration’ is abused to ensure the inevitable failure of Article 8. For example, in Kaya v Germany345 the applicant’s ability to speak Turkish was ‘evidence’ that he had not uprooted from his country of origin, despite the fact that the letters relied on to prove this were penned by his cellmate as he could not himself speak the language. Such tenuous reasoning ensured Germany were not burdened with the responsibility of allowing the continued residence of a convicted offender, again emphasising that state interest influences the conceptual framework of Article 8 in a migration context. A clear anti343

App no 69498/01 (ECHR, 13 July 2004) Anuscheh Farahat, A. (2009). The Exclusiveness of Inclusion: On the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants, European Journal of Migration and Law, 11(3), 253-269 345 App no 31752/02 (ECHR, 28 June 2007) 344

immigration bias shines through as the ECtHR is more willing to protect the interests of the host state to whom the applicant is a ‘migrant’ and thus an ‘alien’ rather than the country of origin to whom the applicant is often considered a national. Moreover, even when there are no such ties to one’s country of origin, not even linguistic ones, the ECtHR has been quick to point to some reason why the applicant could re-integrate into his native country. This is evident in Pormes v Netherlands346 where despite growing up in the Netherlands, the ‘healthy adult man’ could learn Indonesian and adapt to their culture. Therefore, as pointed out by Judge Marten’s dissent in Boughanemi v France,347 such a case-by-case approach is a lottery as to what facts will be relied on to justify often incoherent outcomes. This is perhaps inevitable when migrants are viewed as attempting to use political and civil rights to deal with what is inherently a socio-economic issue (Murphy).348 The lack of reference to migration within Article 8 weighs heavy in the minds of judges, who seek to ensure there is a level of ‘integration’ so that the migrant is akin to a national and therefore deserving of the protection of Article 8. However, this stamp of approval is rarely achieved considering how the notion of ‘integration’ is construed to the detriment of the migrant. Consequently, Article 8 can again be seen as destined to fail by judicial design when the applicant is a migrant. In conclusion, the ECtHR has constructed a conceptual framework applicable only in a migration context which ensures the inevitable failure of Article 8. Ironically, the Court has utilised three concepts not explicitly mentioned within the Convention right in order to combat the fear of forcing upon states a right not clearly gleaned from the text itself. This is problematic for three core reasons. First, migrants are not claiming a right to migration, but instead the right to family and private life to which ‘everyone’ is entitled. Second, the ECtHR consistently fails to protect the individual against the state despite this being the intention of the Article 8 right and what it ‘purports to protect’. Finally, by inventing such stringent requirements in the context of migration, the ECtHR applies Article 8 in a discriminatory fashion and oversteps their mandate in the exact manner that their deferential approach was seeking to avoid. By persistently allowing state sovereignty to guide Article 8’s 346

App no 25402/14 (ECHR, 28 July 2020) (1996) 22 EHRR 228 Clíodhna Murphy (2010). The Concept of Integration in the Jurisprudence of the European Court of Human Rights European Journal of Migration and Law 23-43

347 348

conceptual framework when the applicant is a migrant, the ECtHR has undermined this sovereignty by frustrating the protective potential of Article 8 as envisaged by the states who drafted or subsequently acceded to the Convention.

Embers Beneath the Ice: A Case for Canadian Territorial Claims in the Northwest Passage Ishan Khare and Atul Alexander One of the longest-running legal contentions in the history of Maritime Jurisprudence has been the dissension between “Right to Innocent Passage” and “Principle of Sovereignty”. With the increase of global temperatures, and in particular the defrosting of the North Pole, lucrative trade routes have become accessible, thereby setting the ground for newer power tussles, between some of the world’s most powerful economies. One such maritime dispute has been over the sovereignty of the Northwest Passage, which has forced the United States of America and the Canadian Federation, which has brought two timetested allies at loggerheads with one another. Throughout the course of the dispute, Canada has maintained its position that the Northwest Passage is part of their internal waters and no right of innocent passage exists. The United States of America on the other hand has been unfettered in its claim that the Northwest Passage is an International Strait, and thus there exists a fundamental right to transit through the straits; Canada however yelps trespass. The following article is an attempt by the authors to evaluate the various positions of law and case precedents relied on by both sides to arrive at their respective conclusions. Further, the authors have also attempted to delve into the possible alternatives available at hand to resolve the dispute, while simultaneously measuring their viability in the given case. Lastly, the authors anticipate that due to changing global dynamics in geopolitics, and the intensification of the “scramble for sea bed resources”, it is nothing but obvious that the propensity and frequency of such disputes will be at an ascent. Thus, through the conclusion a hypothetical scenario has been presented by the authors, detailing the course of law that any international tribunal or court of law may take for successfully resolving this dispute, on grounds of equity, justice and due process of law. Introduction History was created on 29th September 2021, when Her Majesty’s Canadian Ship, Harry DeWolf became the first ship commissioned with the Canadian Army to cross the ever so icy waters of the Northwest Passage, in the last 50

years.349 HMCS DeWolf chose to follow the fateful path of Franklin’s Expedition and thereby created several world records in the process. There is, however, much more than what meets the eye; only those unfamiliar with the political climate of Canada and the Arctic Council would mistake the expedition as a mere leisure exercise by the Canadian Navy. The Canadian Navy, and the government in general, over the years, has increased its Arctic presence by many folds.350 The Northwest Passage finds itself at the centre of the Arctic dispute between the United States of America and Canada. Located between the Baffin Island and the Devon Island, the Lancaster Sound, in particular, has been increasingly sought after as an alternate trade route between the Atlantic Ocean and the Pacific Ocean, connecting the manufacturing superpowers of Asia, with the economies of Europe, and Eastern North America.351 Historically the official position of the American government has been pigeon holding the Northwest Passage as an international strait running through the Arctic and has relied upon the Corfu Channel Case352 and Article 37 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS III).353 If the American position were to prevail, then ships internationally would be permitted to conduct “transit passage” through the Northwest Passage “without interference”.354 Canada, on the other hand, asserts that the Northwest Passage constitutes internal waters and does not fall under any definition of an international strait, and has relied upon the Doctrine of Historic Title to the waterways, the Doctrine of Straight Baselines, the Anglo Norwegian Fisheries Case,355 and Part III of

349

Brent Ritcher, 'Fresh from The Northwest Passage, HMCS Harry Dewolf Docks In North Vancouver' (www.nsnews.com, 2021) <https://www.nsnews.com/local-news/fresh-from-the-northwest-passage-hmcsharry-dewolf-docks-in-north-vancouver-4478995> accessed 10 October 2021. 350 Murray Brewster, 'Britain Offers Canadian Military Help To Defend The Arctic' (www.cbc.ca, 2021) <https://www.cbc.ca/news/politics/britain-uk-canada-arctic-defence-submarines-russia-china-1.6187347> accessed 10 October 2021. 351 Staff Writer, 'Ice Persists in The Northwest Passage' (Earthobservatory.nasa.gov, 2021) <https://earthobservatory.nasa.gov/images/148802/ice-persists-in-the-northwest-passage> accessed 12 October 2021. 352 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4 353 Ken Crist and David Biette, 'Canada and The Arctic: The Issue Of Northern Sovereignty' (www.wilsoncenter.org, 2021) <https://www.wilsoncenter.org/event/canada-and-the-arctic-the-issuenorthern-sovereignty> accessed 12 October 2021. 354 Zoë Schlanger, 'The US Is Picking A Fight With Canada Over A Thawing Arctic Shipping Route' (qz.com, 2021) <https://qz.com/1653831/the-us-is-picking-a-fight-with-canada-over-an-arctic-shippingroute/> accessed 12 October 2021. 355 Anglo Norwegian Fisheries Case (United Kingdom v Norway) (Merits) [1951] ICJ Rep 3

the UNCLOS-III.356 If Canada’s position were to prevail, Canada would be able to regulate at will the movement of each ship that traverses the Passage.357 While both the nations have so far been successful in keeping the conflict at bay, with the increase in global temperatures and the melting of the Arctic ice sheet, and the resultant increase (or possibility potential increase) in the shipping, has drawn the two time tested allies against one another, in the barren, dry and lifeless, and frostbitten Arctic. In such a scenario, any attempt by the Canadian government to restrict the navigation through the passage will invite the wrath of the United States and might lead to other nations with vested interests in the Arctic bringing an action against Canada in the ICJ. This article is an attempt at illustrating the various tests any such concerned tribunal or the ICJ itself, will subject the dispute to. The Article can be briefly divided into four sections, with each dealing with a peculiar aspect surrounding the dispute. Section I shall be delving into the history of the Canadian Arctic, and a brief overview of the entire situation. Section II shall be dealing with the historic objections raised by the American government. In Section III the arguments put forth by the Canadian government shall be discussed extensively. And lastly, in Section IV, the authors will be analysing the application of United Nations Conventions on the Law -III in the given dispute, and shall be followed with a detailed conclusion regarding a possible outcome of any such litigation filed before the responsible adjudicating authority. 1.1 The Canadian Arctic Archipelago The Arctic holds a special place in the history of International Law. Home to some of the most convoluted maritime boundary disputes across the world, the entire “land, internal waters, territorial seas and Exclusive Economic Zones in the Arctic are under the jurisdiction of one of the eight Arctic coastal states: Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States”.358 Out of the aforementioned list of nations who form the Arctic

356

Andrea Charron, 'The Northwest Passage: Is Canada's Sovereignty Floating Away?' (2005) 60 International Journal. 357 ibid 358 Daniel Steinfeld and others, 'The U.S. - Canada Northwest Passage Dispute' (brownpoliticalreview.org, 2020) <https://brownpoliticalreview.org/2020/04/the-u-s-canada-northwest-passage-

Council, five countries, namely the United States of America, Canada, Russia, Norway, and Denmark (via its autonomous province of Greenland) are currently contesting over the Arctic Seabed, and its navigation routes, and contrary to popular speculation the United States of America, in this part of the world, is at loggerheads with a nation other than Russia; Canada.359 Since the culmination of the Second World War, the United States of America has been resolute at internationalizing the “Northwest Passage” and declaring it as an “Innocent Passage”; something that the Canadian government has vociferously opposed.360 The Northwest Passage is a sea route that connects the Pacific Ocean with the Arctic Ocean and Europe, running through the Canadian Arctic Archipelago. For the better part of human history, this sea route has remained in operation intermittently during the hottest weeks of summer.361 With increased carbon emissions, however, the temperatures in the Arctic are expected to steadily rise, thereby meaning that in the coming years, the Northwest Passage may soon be ice-free and available for navigation. The melting of ice shall bring with itself a myriad of economic opportunities as the passage offers to reduce the travel time between East Asia and Europe by over 6 weeks when compared to the secondbest alternative (i.e., Panama Canal).362 1.2 A brief history of the Arctic Archipelago The recorded history of the Canadian Arctic Archipelago can be traced back to the early 17th century when Hudson’s Bay Company (HBC) gained a monopoly over the entire fur and fisheries trade in the Hudson Bay Drainage Basin, in addition to the land lease spanning over an area, ranging from the drainage basin

dispute/#:~:text=In%201969%2C%20the%20U.S.%20oil,Canadian%20 icebreakers%20during%20the%20voyage.> accessed 10 October 2021. 359 ibid 360 Staff Writer, 'Who Owns the Northwest Passage?' (www.economist.com, 2021) <https://www.economist.com/the-economist-explains/2019/05/22/who-owns-the-northwest-passage> accessed 10 October 2021. 361 Ken Crist and David Biette, 'Canada and The Arctic: The Issue Of Northern Sovereignty' (www.wilsoncenter.org, 2021) <https://www.wilsoncenter.org/event/canada-and-the-arctic-the-issuenorthern-sovereignty> accessed 12 October 2021. 362 Carolyn Beeler, 'Who Controls the Northwest Passage? It's Up for Debate.' (www.pri.org, 2017) <https://www.pri.org/stories/2017-09-04/who-controls-northwest-passage-its-debate> accessed 10 October 2021.

to the Pacific Coast.363 Almost a century later, with the merger of the North West Company, the HBC extended its monopoly over the entire Arctic Archipelago on the Canadian side.364 Eventually, the territorial concessions granted to the company were transferred to the Dominion of Canada, which was in turn succeeded by the Canadian Federation. Most of the islands that are at the focal point of the contention are under the jurisdiction of two (federal) Canadian Territories, North West Territories and Nunavut.365 It is pertinent to note that the charter that granted authority to the HBC to acquire land in the Canadian Arctic region and Hudson Bay’s drainage basin, did not enjoy jurisdiction over the Aboriginal land titles. With gradual decolonization and attempts at repeating the wrongs of the past, the Canadian government, since the 1970s has recognized the claims of the indigenous community to the land.366 The largest of such Aboriginal Land claims settlements was The Nunavut Land Claim Agreement, signed on May 25, 1993, in Iqaluit, by representatives of the Tunngavik Federation of Nunavut, the Government of Canada and the Government of the Northwest Territories, which led to the creation of a separate territory by the name of Nunavut.367 Thus, it can be inferred that throughout the recorded human history, the Arctic Archipelago, on the Canadian side of the border, had historically been under Canadian jurisdiction, in one form or the other;368 a stark contrast from other contemporary archipelago disputes such as the creation of artificial islands by Bahrain in the Persian Gulf or the annexation of uninhabited islands by China in the South China sea. The fundamental question here is not themed around the sovereignty of the archipelagos, but rather over the waterways lying between them. 363

Melissa Gismondi, 'The Untold Story of The Hudson’s Bay Company' (www.canadiangeographic.ca, 2020) <https://www.canadiangeographic.ca/article/untold-story-hudsons-bay-company> accessed 10 October 2021. 364 ibid 365 Staff Writer, 'Arctic Archipelago' (www.thecanadianencyclopedia.ca) <https://www.thecanadianencyclopedia.ca/en/article/arctic-archipelago> accessed 12 October 2021. 366 Calder v British Columbia (1973) SCR 313. 367 Barry Dewar, 'Nunavut and The Nunavut Land Claims Agreement — An Unresolved Relationship' (policyoptions.irpp.org, 2019) <https://policyoptions.irpp.org/fr/magazines/canadas-waterchallenges/nunavut-and-the-nunavut-land-claims-agreement-an-unresolved-relationship/> accessed 10 October 2021. 368 Ken Crist and David Biette, 'Canada and The Arctic: The Issue Of Northern Sovereignty' (www.wilsoncenter.org, 2021) <https://www.wilsoncenter.org/event/canada-and-the-arctic-the-issuenorthern-sovereignty> accessed 12 October 2021.

In 1969 these disputes, and the Northwest Passage, per se became a household name when SS Manhattan, an American ship, set its sail for a voyage through the Northwest Passage.369 The idea was to circumnavigate the Arctic and find an alternative shipping route from the Eastern Coast of the US to the Pacific.370 The voyage, however, was only seen as a bullish attempt by the US to “ouster” Canadian sovereignty over the Northwest Passage, which according to the latter, were an “inseparable part of its internal waters”.371 Canada, in the aftermath of the controversy, took an array of legal measures aimed at bolstering its claims of sovereignty over the waterway(s), including revoking its reservation and overtaking the case to the ICJ.372 While so far, the nation has not approached the ICJ, in an event that it decides to do so, the authors feel that its case shall be themed around two grounds primarily- a title for the waterways on historical grounds and on the basis of straight baselines themselves, which will be dealt with in the coming section. The American Objections The cornerstone of the American arguments is centred around Article 37,373 under Part III of the UNCLOS III, a treaty that has never been ratified by the American Congress. The Right of Innocent Passage forms a subsection under Part III of the UNCLOS. An Innocent Passage can be defined as “the right of all ships to engage in continuous and expeditious surface passage through the territorial sea and archipelagic waters of foreign coastal states in a manner not prejudicial to its peace, good order, or security.”374 To better understand the Right to Innocent Passage, it is imperative to understand the Corfu Channel Case,375 between the United Kingdom and Albania, in detail. The 1949 case over the legal status of the Corfu Channel, arose when two mines embedded in the sea struck two British Warships over 369

Jim Coogan, 'The Forgotten Cruise of The SS Manhattan' (www.capecodtimes.com, 2009) <https://www.capecodtimes.com/article/20090901/opinion/909010328> accessed 12 October 2021. 370 ibid 371 Jeremy Seth Geddert, 'Right Of (Northwest) Passage: Toward A Responsible Canadian Arctic Sovereignty' (2019) 52 Canadian Journal of Political Science. 372 ibid 373 United Nations Convention on the Law of the Sea 1982, art 37 374 Donat Pharand, 'Canada's Sovereignty Over the Northwest Passage' (1989) 10 Michigan Journal of International Law. 375 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4

the legal status of the Corfu Channel. For context, the Corfu Channel is a “strait” located between the Albanian mainland and the Corfu island of Greece.376 The central issue of the litigation was whether the Corfu Strait qualified as an “international waterway”.377 The ICJ herein went into detail defining what constitutes an “international strait”, and under what conditions can the “right of innocent passage” be exercised. The ICJ herein held that due to the continuous use of the channel for centuries, as a “practice of customary international law”, the straits shall be considered as an “innocent passage”.378 According to the court, the decisive criterion “is the geographical positioning of the Channel, connecting two parts of the high seas”, and providing a more economically viable option for transiting ships.379 While innocent passage, to an extent, still forms a legal grey area, UNCLOS III has succinctly described the prerequisites through Article 38380 and Article 45381. The American government has repeatedly harped on the Corfu Channel Case to get their argument across. It, however, should be noted that the test applied for the determination of the straits was based on “historic usage”.382 In the given case, while the Northwest Passage is expected to shorten the transit time between Asia and Europe or the Eastern Coast of North America by more than 40 per cent, it is, however, still a possibility.383 Furthermore, a key fallacy in the American argument is that it conflates potential usage with actual or historical usage.384 Another, albeit lesser-used, argument made by the American government is based on Article 47(5),385 Part IV of the UNCLOS III. Article 47(5) primarily acts as a bulwark against any state that wishes to assert the baseline delimitation methodology on the high seas, so as to deprive another state of the right to high 376

Bujar Ahmedi and Shefik Shehu, 'Resolution of International Conflicts Through the United Nations: The Corfu Channel Case' (2016) 12 European Scientific Journal, ESJ. 377 ibid 378 Quincy Wright, 'The Corfu Channel Case' (1949) 43 American Journal of International Law. 379 ibid 380 United Nations Convention on the Law of the Sea 1982, art 38 381 United Nations Convention on the Law of the Sea 1982, art 45 382 Bujar Ahmedi and Shefik Shehu, 'Resolution of International Conflicts Through the United Nations: The Corfu Channel Case' (2016) 12 European Scientific Journal, ESJ. 383 Donat Pharand, 'Canada's Sovereignty Over the Northwest Passage' (1989) 10 Michigan Journal of International Law. 384 ibid 385 United Nations Convention on the Law of the Sea 1982, art 47(5)

seas”.386 In one of the more notable cases, the ICJ had taken the aforementioned bulwark in consideration which adjudicating the Qatar vs. Bahrain case,387 in favour of the Emirate of Qatari.388 The American government has often postulated that owing to more than 100 uninhabited islands in the Canada Arctic Archipelago, Canada should not be allowed to apply the doctrine of straight baselines and that the straits between such islands should be a part of the high seas.389 3.1 Historic Title to the Waterways The doctrine of “Historic Waters” can be traced back to the late 19th century, and has ever since been enhanced through the various conventions vis-a-vis the Law of the seas, with the most recent being UNCLOS, 1982. Part II of the UNCLOS deals with territorial sea and continuous zones. The AngloNorwegian Fisheries Case of 1951,390 was a watershed moment in the history of the Law of the Seas, and cemented the acceptance of historic waters in the general international law. The judgement, however, much like the Conventions, is conspicuously silent so as to what are the “legal requirements for the existence of historic waters”.391 From empirical observations, authoritative studies conducted and recommendations tendered by the International Law Commission, one can construe three prerequisites for any nation “claiming high seas, as territorial waters”:392 1. The exclusive exercise of State authority; 2. Long usage; and 3. The acquiescence by Foreign States.

386

ibid Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [1994] ICJ Rep 112 388 Add para 40 and 41 for the aforementioned case 389 Hiroshi Motomura and E. Achiume, 'The Potential-Use Test and The Northwest Passage' (Harvardlawreview.org, 2020) <https://harvardlawreview.org/2020/06/the-potential-use-test-and-thenorthwest-passage/> accessed 12 October 2021. 390 Anglo Norwegian Fisheries Case (United Kingdom v Norway) (Merits) [1951] ICJ Rep 3 391 Jens Evensen, 'The Anglo-Norwegian Fisheries Case and Its Legal Consequences' (1952) 46 American Journal of International Law. 392 Donat Pharand, 'Canada's Sovereignty Over the Northwest Passage' (1989) 10 Michigan Journal of International Law. 387

Exclusive Exercise of State Authority Historic waters are an integral part of the national territory of the state, and the jurisdiction exercised over the waters should be indivisible, and essentially the same as that exercised over the rest of the country, i.e. “the control exercised over the maritime territory should be in exclusion of all other states”.393 In consonance with the aforementioned, while it can be deliberated regarding the extent of control that a nation may be able to exercise in the arctic, nevertheless, it is incumbent upon the claimant state to ensure that it is able to exercise its sovereignty and authority whenever necessary. A paragon of this authority can be the requirement of a clearance required to navigate these waters.394 Historically speaking, the Arctic Archipelago (on the Canadian side), with the waterways included, has been an inalienable part of the Canadian Confederation. Upon gaining “independence” from the direct control of the British Crown and government in the year 1867, the concerned arctic territories, without any reservations were transferred to Canada, and have remained with it, ever since.395 In 1906, Canada enacted a legislation requiring whalers to obtain a license for hunting whales in Hudson Bay and “other territorial waters of Canada”.396 Further, in 1922, Canada constituted the Eastern Arctic Patrol397 and held annual patrols till the early 1960s.398 Additionally, it adopted the Arctic Islands Preserve Act, 1926399 to protect the natives and wildlife. This was similarly followed by the Game Regulations applicable in the Preserve, in 1929.400 Collectively, these regulations consolidated Canadian authority and sovereignty over the islands lying between the 60th and 141st degrees of longitude.401 Furthermore, Canada has consistently provided ice breaking 393

Clive Ralph Symmons, Historic Waters In The Law Of The Sea (1st edn, Martinus Nijhoff Publishers 2008). 394 ibdi 395 British North America Act 1867 396 Donat Pharand, 'Canada's Sovereignty Over the Northwest Passage' (1989) 10 Michigan Journal of International Law. 397 Eastern Arctic Patrol Act 1922 398 Donat Pharand, 'Canada's Sovereignty Over the Northwest Passage' (1989) 10 Michigan Journal of International Law. 399 Arctic Islands Preserve Act 1926 400 Game Regulations (applicable) in the Preserve Act 1929 401 Jens Evensen, 'The Anglo-Norwegian Fisheries Case and Its Legal Consequences' (1952) 46 American Journal of International Law.

services to foreign vessels that wish to transit through the passage, and ever since the USS Manhattan incident, has adopted Arctic Waters Pollution Prevention Act, 1970402 and the NORDREG reporting system, in 1977, to ensure shipping controls and data monitoring of all the ships that enter the waters.403 Long Usage The criteria of “long usage” of the passage is largely subjective and varies on a case-to-case basis. Being a custom, it is nearly impossible to determine the duration of the control, before it materializes into an historic title.404 It is, however, pertinent to note that the Inuits, a majority of whom call Canada as their home, since the 9th century have been continuously using these waterways, not just for fishing and other economic activities, but also as nomadic communities, for annual migration.405 In addition to the Inuits, the Canadian government has been actively using the waters for various research, and economic purposes. Conjointly, these activities over the years have only bolstered Canada’s claims over the territorial waters, and can be said to have met the threshold set by the Fisheries case,406 if the dispute were to be taken to the ICJ. Acquiescence by Foreign States Undoubtedly perhaps the most contended of all criterions, is “acquiescence by foreign states”.407 As explicitly mentioned in the Fisheries case, “any nation claiming the possibility of historic waters ought to take all permissible means available at its disposal to prevent any other sovereign authority from hampering the former from claiming so”.408 Having said that, in cases themed around 402

Arctic Waters Pollution Prevention Act 1970 Donat Pharand, 'Canada's Sovereignty Over the Northwest Passage' (1989) 10 Michigan Journal of International Law. 404 Donald R. Rothwell, 'Arctic Sovereignty And Its Legal Significance For Canada' (2013) 13 College of Law, Australia National University. 405 Mary Griggs, 'The First People To Settle Across North America's Arctic Regions Were Isolated For 4,000 Years' (www.smithsonianmag.com, 2014) <https://www.smithsonianmag.com/smart-news/isolatedculture-thrived-arctic-4000-years-180952505/> accessed 12 October 2021. 406 Anglo Norwegian Fisheries Case (United Kingdom v Norway) (Merits) [1951] ICJ Rep 3 407 Arctic Waters Pollution Prevention Act 1970 408 n 7 ( paras: 128-131; 133) 403

historical consolidation over territorial waters, even toleration on part of the opposing party can be treated as condoning the claimant’s claim. The situation, however, enters murky waters over here as the United States of America has increasingly ignored Canada’s authority over the region and acted as if the waters were part of the high seas, thus making Canada’s claim of sovereignty an uphill battle. The United States of America formally protested in 1970, not only against the Arctic Waters Pollution Prevention legislation, but also against Canada's extension of its territorial sea to 12 miles.409 However, interpretation with respect to Part III of the UNCLOS III, which deals with the provisions relating to “straits used for international navigation”, is imperative in this test. Article 35(1)410 of the UNCLOS III specifically states the limitation of Part III, in cases pertaining to enclosed areas which are a part of “internal waters” (as laid down through the provisions of Article 7,411 which shall be dealt with in the following sub section). 3.2 Application of Straight Baselines for the Arctic Archipelago According to Article 7, Part II of the UNCLOS, “when a coast is bordered by an archipelago, it is permissible to draw straight baselines across the angular and between the outermost points of the islands, and measure the territorial sea from those baselines”.412 This is known as the Straight Baselines Rule. Article 8(2)413 further elaborates this position and states that “right to innocent passage” applies to only those areas that previously were not part of the enclosed internal waters and were used for navigation.414 The only reservation to the application of Straight Baselines Rule lies in overextending the general direction of the coast, and ensuring that the sea areas lying within the lines are reasonably linked to the concerned coast.415

409

n 39 United Nations Convention on the Law of the Sea 1982, art 35(1) United Nations Convention on the Law of the Sea 1982, art 7 412 ibid 413 United Nations Convention on the Law of the Sea 1982, art 8(2) 414 n 54 415 Graeme Scott Baber, The Global Law Of The Sea (Nova Science Publishers, Incorporated 2020). 410 411

Furthermore, they cannot be used in cases where their application intrudes into the territorial sea of another sovereign nation.416 By and large, application of Straight Baselines requires the fulfillment of two prerequisite criterias:417 (i) Geographical Requirements and (ii) The Mode of Application. Geographical Requirements The criterion regarding geographical requirements first surfaced in the Fisheries case,418 where the court upheld its applicability in cases where the coast was deeply indented or where it was bordered by an archipelago. Furthermore, the court also gave special consideration to the peculiarity of the Norwegian archipelago and even considered the waters between the archipelago which was more than 60 miles away from the mainland, as a part of the “territorial waters”.419 The Canadian coastline, much like the Norwegian coastline, is closely bordered by the archipelago, which at certain points is intended in a manner similar to that seen on the Norwegian coastline. Mode of Application The mode of application, by and large, is a set of diverse guidelines that relate to the direction of the coast, its link between the land and the sea, and certain economic interests fueled by a history of usage.420 A General Direction of the Coastline The mode of application for ascertaining the baseline shall in no situation wander to more than an “appreciable extent” from the general direction of the coastline. A reasonable extent is subjected to the various environmental conditions and varies on a case to case basis.421 416

ibid Donat Pharand, 'Canada's Sovereignty Over the Northwest Passage' (1989) 10 Michigan Journal of International Law. 418 Anglo Norwegian Fisheries Case (United Kingdom v Norway) (Merits) [1951] ICJ Rep 3 419 ibid 420 United Nations Convention on the Law of the Sea 1982, art 8(2) 421 ibid 417

Close Link Between Land and Sea The existence of a close link between the concerned coastline and the sea area enclosed which was subject to the claim is germane.422 In the Fisheries case it was held that the close link was a “fundamental consideration” as the enclosed waters will constitute the status of “internal waters”, with the coastal State enjoying complete sovereignty. In such enclosed waters, even the right to innocent passage shall not apply.423 However, these waters shall be assimilated into the bracket of territorial waters, if they were previously considered a part of the high seas or the territorial seas. In the case of Canada, the presence of ice over the concerned waters, for the better part of the year, bolsters Canada’s claims of sovereignty over the former. Furthermore, the waters have so far not been classified as “Innocent Passage”, a portion that shall be discussed in the coming section. Regional Economic Interests Evidenced by Long Usage The requirement of “Regional Economic Interests, evidenced through long usage” of the waters, essentially add probative value to the claimant country’s case.424 In the Fisheries Case,425 Norway advanced its case based on the historic fishing and hunting rights of the local population. In Canada’s case, the local Inuit population has been continuously using the waters for hunting, whaling and other fishing activities. Further, since the early 19th century, the government of Canada, has by and large, been the sole permitting authority for fishing and other rights in the region.426 Furthermore, starkly contrasting the Corfu Channel Case, the North West Passage has so far been largely non navigable, or has had limited navigability throughout the year, in consonance with Article 8(2) of the UNCLOS III.427 As recent as 2019, barely

422

Donat Pharand, 'Canada's Sovereignty Over the Northwest Passage' (1989) 10 Michigan Journal of International Law. ibid 424 Arctic Waters Pollution Prevention Act 1970 425 Anglo Norwegian Fisheries Case (United Kingdom v Norway) (Merits) [1951] ICJ Rep 3 426 ibid 427 United Nations Convention on the Law of the Sea 1982, art 7 423

27 ships travelled through the Passage, well below any possible threshold required for classifying the straits as open for “Innocent Passage”.428 Interestingly enough in the Gulf of Maine case,429 the ICJ had explicitly stated that a holistic overview of the entire situation and its background was required before it can be incorporated under the ambit of a customary law.430 With regards to the same, there exists no “Innocent Passage” in the (newly) enclosed water bodies constituting the North West Passage.431 Analyzing UNCLOS III on the question of law At the heart of American objection lies Article 37 of the UNCLOS, which deals with the question regarding “Transit Passage(s)”.432 Article 37 itself is themed around the understanding and reading of the phrase “international navigation”.433 However, even more crucial is reading the phrase under the correct context. Article 37 explicitly states that it applies to straits that “are used for international navigation”, thereby hinting in favor of more “traditional waterways”. To counter this contention the American International Law luminaries have often presented a slightly divergent interpretation of the UNCLOS III, per se. They have ‘historically’ argued that UNCLOS III is to be treated as a living law, and that it in no manner shall remain “frozen in time”.434 This explanation provides little to clear the ambiguity surrounding Article 37. Furthermore, internationalizing the North West Passage will go against the spirit of the convention as ensuring equity, a core object of the UNCLOS III will be lost. Canada, on the other hand, stands to benefit from the application of the doctrine of Historic Title, and the Doctrine of Straight Baseline. As previously analyzed 428

Levon Sevunts, '2019 Saw Increase In Commercial Shipping Through Northwest Passage' (www.rcinet.ca, 2019) <https://www.rcinet.ca/en/2019/12/11/2019-commercial-shipping-throughnorthwest-passage/> accessed 12 October 2021. 429 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States), [1984] ICJ Rep 165 430 Jan Schneider, 'The Gulf of Maine Case: The Nature of an Equitable Result' (1985) 79 American Journal of International Law. 431 ibid 432 United Nations Convention on the Law of the Sea 1982, art 37 433 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [1994] ICJ Rep 112 434 ibid

through the interpretation of Section 7 and Section 8 of the UNCLOS III, Canada can rightfully curtain the “right to innocent passage”, as the passage was “not in use previously”.435 Furthermore, it will not be wrong to say that the NorthWest Passage dispute in more than one ways, is a replica of the Anglo Norwegian Fisheries dispute, and keeping past precedents into consideration, the case again seems to tilt in favor of Canada. Exploring the Alternates: Over the years, two alternatives to Canada’s complete jurisdiction have been posited, which are as follows436a. An Antarctic Treaty like framework for the NorthWest Passage437 b. Juxtaposing a Svalbard treaty like framework on the Archipelago438 Both the alternatives, however, are bereft of logic and legal prudence unfortunately. The Article IV of the Antarctic Treaty,439 while prohibiting the creation of new claims to the Archipelago, is extremely ambiguous when it comes to “asserting, supporting or denying a claim to territorial sovereignty in Antarctica or creating any rights of sovereignty” in Antarctica.440 Such ambiguity can only dilute Canada’s existing claims to “its existing Arctic Archipelago”.441 Additionally, demilitarization of the NorthWest Passage, shall also be in direct contradiction to the existing Canadian legislations, and shall be restricting the jurisdiction of the Canadian Coast Guard and Navy, which has been patrolling the area since the dawn of the 20th century. Furthermore, as previously stated, the dispute is centered around the “straits and not the archipelago”, per se. The Antarctic treaty is heavily focused towards ensuring the territorial neutrality of the Antarctic continent from future claims, while being ambiguous about the pre existing claims.442 Therefore applying an 435

Donat Pharand, 'Canada's Sovereignty Over the Northwest Passage' (1989) 10 Michigan Journal of International Law. 436 Joanne Yao, 'An International Hierarchy of Science: Conquest, Cooperation, And The 1959 Antarctic Treaty System' [2021] European Journal of International Relations. 437 ibid 438 Oystein Jensen, 'The Svalbard Treaty and Norwegian Sovereignty' (2020) 11 Arctic Review on Law and Politics 439 The Antarctic Treaty 1959, article 4 440 Gillian Triggs, 'The Antarctic Treaty Regime: A Workable Compromise or A Purgatory of Ambiguity' (1985) 17 Case Western Reserve Journal of International Law. 441 ibid 442 ibid

Antarctic Treaty like framework, can only lead to the deterioration of the status quo, as its application might lead to the internationalization of the entire archipelago, and would definitely lead to the loss of territorial sovereignty for Canada. The Svalbard Treaty,443 when compared to the Antarctic Treaty, is relatively more relevant in the given scenario. While Article 1 of the Treaty recognizes “full and absolute sovereignty of Norway over the Archipelago of Spitsbergen”444 (now, Svalbard), Article 2 of the treaty seeks to internationalize the waters surrounding the Archipelago,445 allowing all the contracting parties “enjoy equally the rights of fishing and hunting in the territories specified in Article 1”. Further, Article 3 of the Treaty allows all nationals of the countries contracting the treaty to “equal liberty of access and entry to the waters, fjords and ports of the territories specified in Article 1”,446 subject to “local laws and regulations”. In other terms, while the Archipelago indeed is a part of the Kingdom of Norway, the Norwegian government is unable to effectively exercise control over the islands.447 This can also be further testified by the fact that the Norwegian government is currently fighting tooth and nail in the Arctic to ward off Russian expansionism, and a Crimea styled annexation of Svalbard.448 It thus can be deduced that the results of imposing any such treaty on the lines of the Antarctic Treaty or the Svalbard Treaty, over Canada, will only result in the dilution of its Territorial Integrity, a textbook violation of Article 2(2) of the UN Charter449.450 More importantly any such imposition will set an unfortunate precedent in International Geopolitics, and may threaten to permanently blot the legacy of the International Court of Justice, opening a Pandora's box of such frozen disputes, such as the Kuril Islands dispute between the Japanese Government and the Russian Federation.451 443

The Svalbard Treaty 1920 The Svalbard Treaty 1920, article 1 445 The Svalbard Treaty 1920, article 2 446 The Svalbard Treaty 1920, article 3 447 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [1994] ICJ Rep 112 448 ibid 449 United Nations Charter 1945, art 2(2) 450 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [1994] ICJ Rep 112 451 Elsa Wiesinger, 'Increasing Tensions In Russia-Japan Kuril Islands Dispute' (theowp.org, 2021) <https://theowp.org/increasing-tensions-in-russia-japan-kuril-islands-dispute/> accessed 12 October 2021. 444

Conclusion It is extremely intriguing how a 21st century dispute resonates with a 16th century play in such a facile fashion. However, given the stakes and the players involved in the dispute, it is extremely important to ensure that the resolution is amicable in nature. A State’s territory and sovereignty, is a precious heritage, and an inestimable possession, that has the potential of evoking strong nationalistic fervor. The NorthWest Passage presents before us an array of intricate issues, and raises a question of profound importance regarding the “territorial integrity and maritime sovereignty” of Canada. The issues of Canadian sovereignty, and the American contentions over the NorthWest Passage lie at the intersection of Public International Law and Municipal Law. Hardly have the borders of a country ever been decided unilaterally; lesser arbitrarily, and in violation of the International Law. The delicacy of the situation warrants utmost care and caution, especially from a political standpoint. However, it is also imperative to understand that American expansionism in the Arctic through the sovereign waters of Canada, is not just an act of unwarranted belligerence, but also illegal. As a democracy, and a global powerhouse, the United States of America has stronger vested interests in remaining a constructive actor in the development of rule of law in the international global community, instead of being a malefactor in the international community. Through the course of the article, we can construe that how the American objections themed around the “potential usage” is categorically incorrect for the interpretation of Article 37. Further, American attempts at drawing parallels with Corfu Channel Case, are also futile, as “historic usage” on which the ICJ placed immense reliance while deciding the case is conspicuously missing from the NorthWest Passage dispute. Canada on its part enjoys the strong backing through the precedent set in the Anglo Norwegian Fisheries Case, as well as bolstering its case through its Historic Title to the waterways, and by the application of the Straight Baseline Rule. In the latter two, we also observed that through a comprehensive evaluation of Part III and Part II of the UNCLOS III respectively, the object and purpose of

the UNCLOS itself point towards the inappropriateness of the potential usage test. Lastly, through the aforementioned set of facts we can also infer that lands and the enclosing waterways were historically the sovereign possession of the Canadian state, and that a question regarding the legal status of the passage should never have emerged in the first place. Accordingly, if an international tribunal or the ICJ itself, where to evaluate the legal status of the NorthWest Passage, it most certainly should come to the conclusion that no “Right to Innocent Passage” exists between the concerned waterways, and that Canada should enjoy the sovereign authority over these straits. Furthermore, application of any treaty replicating either the Svalbard Treaty or the Antarctic treaty will come at the cost of dilution of Canadian sovereignty.

Taxing the Rich (Abroad): Combating UK High-Income Earner Flight to Preferential Personal Income Tax Regimes with Conditional CitizenshipBased Taxation Syed Muhammad Humaid Adil With more and more of the UK’s wealthiest individuals relocating to overseas tax havens to avoid the UK’s residence-based personal income tax, the need to address this specific form of tax avoidance is pressing. This article argues for the adoption of Continental-style conditional citizenship-based taxation regimes, as opposed to a blanket citizenship-based taxation regime, to tackle high-income earner flight to jurisdictions with preferential personal income tax regimes. Introduction Personal income tax is one of, if not the, key source of revenue that funds the modern state apparatus. Its significance to the public purse, with income tax constituting the single largest source of revenue for the UK amounting to £196 billion out of the total £793 billion raised in 2020/21 alone, needs no further elaboration.452 An issue however arises when the wealthiest in society actively seek to shirk their duty to contribute to the societies in which they and their wealth originates from. Such high-income earners, internationally-mobile executives, were described by Theresa May in 2016, the then Prime Minister, as “citizens of nowhere” who “don’t understand what the very word ‘citizenship’ means”.453 Consider Sir James Ratcliffe, the founder and CEO of Ineos, and until his relocation to Monaco, the UK’s richest man with an estimated net worth of £21

452

House of Commons Library, Tax Statistics: An Overview (CBP-8513, 2021) 6 Financial Times, ‘John McDonnell warns Jim Ratcliffe against shifting tax affairs’ <https://www.ft.com/content/0f43fd6c-32d0-11e9-bb0c-42459962a812> accessed 31 January 2022

453

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billion.454 Under Monaco’s tax laws, should an individual reside within the principality for at least 183 days of a tax year they are considered a resident and will not be required to pay income or property tax in Monaco. On the other hand the UK’s personal income tax law places a 45% marginal tax rate for taxable incomes above £150,000. Sir Ratcliffe’s relocation to Monaco is estimated to deprive the public purse of £4 billion in tax payments in the long run.455 This is not an isolated incident either, individuals who benefit from such harmful income tax measures amount to nearly 200,000 people within the European Union, depriving at least €4.6 billion in tax payments yearly to EU Member States.456 Globally and generally speaking, it is almost a universal rule of law, that once you are no longer a resident under domestic tax law you will no longer be subject to most taxation in that country even if you possess its citizenship. Once you have relocated your residence to outwith the country in which you were previously subject to taxation on a world-wide basis, you will no longer have the same onerous tax liability. Such an approach is justified partly via the Benefits Received Principle which argues that it is fairer to pay tax in the state in which one uses the benefits of taxation, such as public services and infrastructure.457 The theory of taxation that uses residence as the determining factor, Residence-Based Taxation, stands opposed to Citizenship-Based Taxation. In the latter, domestic tax law treats resident citizens and non-resident citizens within the same category of taxpayers, obliging both as citizens of the state to pay tax. These two competing theories are often presented as diametrically opposed. The former being presented as in touch with the modern 454

Robert Goulder, ‘Lessons In Global Mobility And Tax: Sir James Packs His Bags’ Forbes <https://www.forbes.com/sites/taxnotes/2020/10/22/lessons-in-global-mobility-and-tax-sir-james-packs-hisbags/?sh=77c0bb0e1f4f> accessed 28 January 2022 455 Rupert Neate, ‘Sir Jim Ratcliffe, UK’s richest person, moves to tax-free Monaco’ The Guardian (London, 25 September 2020) <https://www.theguardian.com/business/2020/sep/25/sir-jim-ratcliffe-uksrichest-person-moves-to-tax-free-monaco-brexit-ineos-domicile> accessed 28 January 2022 456 Eloi Flamant, Sarah Godar and Gaspard Richard, ‘New Forms of Tax Competition in the European Union: an Empirical Investigation’ (EU Tax Observatory 2021) Report 3 <https://www.taxobservatory.eu/wp-content/uploads/2021/11/EU-Tax-Observatory-Report-3-TaxCompetition-November-2021.pdf> accessed 28 January 2022 457 Richard A. Musgrave and Peggy B. Musgrave, Public Finance in Theory and Practice (5th edn, McGraw-Hill Book Co 1989) 219

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reality of our globalised economies and mobility of persons, and the latter as an immoral extension of the proverbial long arm of the law. If Residence-Based Taxation is justified on the basis that individuals ought to be taxed where they consume the fruits of taxation then the relocation of highincome earners such as Sir Ratcliffe, whose upbringing and business are the product of the UK’s public services, possess a problem to and undermines Residence-Based Taxation. Also given the significance of protecting personal income tax revenue and combating tax avoidance, it is necessary to introduce measures to tax citizens who relocate for tax purposes to a preferential personal income tax regime. This is not just to address this arguably specific form of tax avoidance but to also protect the UK’s personal income tax base. While each jurisdiction approaches taxation differently, this article shall distinguish between two kinds of Citizenship-Based Taxation, namely blanket and conditional Citizenship-Based Taxation. The former applies the same tax burden based on citizenship alone whereas the latter qualifies the application of the tax burden due to citizenship. This article shall first review the UK’s Residence-Based Taxation system against existing blanket and conditional Citizenship-Based Taxation systems, following which, conduct a comparative evaluation of which kind of Citizenship-Based Taxation would better arm the UK in its fight against tax avoidance. This article shall seek to argue that the UK can better combat highincome earner flight to preferential personal income tax regimes through a conditional form of Citizenship-Based Taxation as opposed to a blanket Citizenship-Based Taxation system.

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Residence and Citizenship-Based Taxation 1.1 Residence-Based Taxation Within the UK, tax residence is determined by the Statutory Residence Test.458 An individual will be considered a resident within the UK for tax purposes if they meet the automatic residence test459 or the sufficient tie test460. There are 4 automatic residence tests, namely: 1) spending 183 days within the UK in a year, 2) the individual’s only home is in the UK for at least 91 days in the year, 3) working full-time within the UK for a period of 365 days without any significant breaks from the UK during that period, or 4) dying in a tax year when the individual in question was previously automatically a resident for the preceding 3 tax years and the individual had a home within the UK.461 There are also 4 automatic overseas tests that establish non-UK tax residence: 1) if the individual in question was a UK resident for one or more of the 3 preceding tax years and they spent less than 16 days in the UK in the year in question, 2) if the individual was not a UK tax resident in any of the 3 preceding tax years and they spent less than 16 days within the UK in the year in question, 3) if the individual worked full-time overseas in the year in question, spent less than 31 days working in the UK and spent less than 91 days within the UK, or 4) dying in a tax year when the individual was not a UK resident in either of the 2 preceding tax years and spent less than 46 days in the UK in the year in question.462 Should none of the automatic tests be met, then the sufficient ties test stipulates an individual is a UK tax resident should they have “sufficient UK ties”.463 These ties can consist of family, accommodation, work, 90-days spent in previous tax years within the UK or if the UK is where they spend most of their 458

Finance Act 2013, sch 45 Finance Act 2013, sch 45, para 3(a) 460 Finance Act 2013, sch 45, para 3(b) 461 Finance Act 2013, sch 45, paras 6-10 462 Finance Act 2013, sch 45, paras 11-16 463 Finance Act 2013, sch 45, paras 17(1)(b) 459

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time. How many of these ties need to be considered depends on the individual days spent in the UK. The more days that are spent in the UK, the fewer ties are required to establish UK residency for tax purposes.464 While the UK does have a limited system of claw-backs in place it is typically focused on temporary short term relocations and therefore does not address the issue of high-income earners fleeing to preferential personal income tax regimes to the detriment of the UK’s tax base. The temporary non-residence antiavoidance rules for instance prevent former-UK residents from benefiting from short periods of non-residence to realise income and gains outwith the UK and thereby escape UK taxation on that income.465 The provisions however only apply if the taxpayer becomes a UK resident within five years of departure from the UK and has been a UK-resident for four out of the preceding seven years prior to that departure. This fails to address relocation to preferential personal income tax regimes for the purposes of avoiding UK personal income tax since the rules are focused only on cases of temporary non-residence.466 It is therefore now prudent to consider the measures adopted by other countries in the form of Citizenship-Based Taxation. This article shall first distinguish between blanket Citizenship-Based Taxation regimes, which tax all nonresident citizens and conditional Citizenship-Based Taxation regimes, that seek to qualify which non-resident citizens are subject to tax. 1.2 Citizenship-Based Taxation Citizenship-Based Taxation determines tax liability based on one's citizenship. There are currently in the world only two jurisdictions that operate a blanket Citizenship-Based Taxation system, namely the United States and Eritrea. There are, however, a number of countries who use citizenship as a factor in combating

464

Finance Act 2013, sch 45, paras 18-19 The Temporary Non-Residence (Miscellaneous Amendments) Regulations, SI 2013/1810 466 Michael Flaherty and Nigel Giles, ‘Temporary non-residence: the anti-avoidance rules” (Tax Journal, 2021) <https://www.bdo.co.uk/getmedia/9a110ced-e759-47f8-ad63-21e68d91956e/Tax-Journal-Temporarynon-residence-the-anti-avoidance-rules.pdf.aspx> accessed 29 January 2022 465

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relocation-based tax avoidance by high-income earners, such as Spain and France.

1.2.1 Blanket Citizenship-Based Taxation The US’ Citizenship-Based Taxation system467 had a rocky start with initial income tax legislation468 being struck down by the United States Supreme Court as unconstitutional,469 as it violated the restriction upon direct taxation unless by apportionment enshrined therein.470 The passage of a federal income tax thereby required the passage of not just another Act of Congress471 but the amendment of the US Constitution itself,472 with this being achieved in 1913. The Revenue Act 1913 carried forward the language of the preceding Revenue Act 1894 in that “every citizen of the United States, whether residing at home or abroad” was subject to income tax.473 This firmly and explicitly established the blanket Citizenship-Based Taxation system of personal income tax within the US. The current rule ‘[I]mposes an income tax on the income of every individual who is a citizen or resident of the United States and, to [an] extent (...), on the income of a non-resident alien individual’.474 Non-resident citizens of the US are therefore liable to pay income tax and hence need to file a US tax return. 467

U.S. Department of the Treasury. Tax Guide for U.S. Citizens and Resident Aliens Abroad. By Internal Revenue Service. Revised. Washington: Government Printing Office, 2021. (Publication 54). (Cat. No. 14999E) Available at: https://www.irs.gov/pub/irs-pdf/p54.pdf Accessed: 2/28/22 468 Revenue Act 1894 (US), §27: ‘… [T]here shall be assessed, levied, collected, and paid annually upon the gains, profits, and income received in the preceding calendar year by every citizen of the United States, whether residing at home or abroad, and every person residing therein…’ (emphasis added) 469 Pollock v. Farmers’ Loan and Trust Company, 157 US 429 (1895) (US) 470 U.S. Const., art. 1, §9 (amended in 1913) 471 Revenue Act 1913 (US), §2(A)(1): ‘That there shall be levied, assessed, collected and paid annually upon the entire net income arising or accruing from all sources in the preceding calendar year to every citizen of the United States, whether residing at home or abroad, and to every person residing in the United States, though not a citizen thereof, a tax of 1 per centum per annum upon such income, except as hereinafter provided ; and a Tike tax shall be assessed, levied, collected, and paid annually upon the entire net income from all property owned and of every business, trade, or profession carried on in the United States by persons residing elsewhere.’ (emphasis added) 472 US Const., amend. XVI 473 Revenue Act (1894), §27 and Revenue Act (1913), §2(A)(1) 474 26 C.F.R. §1.1-1(a)(1)

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The near-unique burden therefore placed upon citizens of the US, whereby their income is taxed regardless of where it is earned or where the individual in question resides, raises a number of issues for non-resident US citizens. While they may qualify for certain foreign earned income exclusions and/or foreign income tax credits, to reduce the burden of double taxation,475 regardless there are unique costs to being subject to US income tax as a non-resident US citizen. In some countries “it can cost as much as 40% more to hire an American than their foreign counterpart” as a result of the US’ Citizenship-Based Taxation regime’.476 There are also a number of reporting requirements for foreign finances held by US citizens477 that carry significant penalties for the failure to comply with them that often exceed the personal income tax rate itself.478 These penalties can include a civil penalty of $10,000 for each non-wilful violation with wilful violations drastically increasing the cost to the greater of either $100,000 or 50% of the amount in the account for each violation. Furthermore, every annual tax return not filed constitutes a separate violation. Criminal penalties are even more severe including fines of $250,000 and 5 years of imprisonment and should the violation be concurrent to other breaches of the law the penalties will surge to $500,000 in criminal fines and/or 10 years imprisonment. For those that exceed even this and qualify as delinquent taxpayers the US may also deny passports to such non-resident US citizens and seize any US-based accounts and/or assets they may have.479

475

U.S. Department of the Treasury, Internal Revenue Service. (2021). Tax Guide for U.S. Citizens and Resident Aliens Abroad (Publication 54, Cat. No. 14999E) U.S. Government Publishing Office American Citizens Abroad, ‘Summary Outline H.R. 7358 - Tax Fairness for Americans Abroad Act of 2018’ <https://www.americansabroad.org/media/files/files/ce29f262/tax-fairness-for-americans-abroad-act1-pager.pdf> accessed 29 January 2022 477 Bank Secrecy Act, Pub. L. No. 91-508 84 Stat. 1114-2 (1970), Foreign Account Tax Compliance Act, Pub. L. No. 111-147 124 Stat. 71, 97-117 (2010) 478 Robert W. Wood, ‘FBAR Penalties: When Will IRS Let You Off With A Warning?’ Forbes (New Jersey, 4 June 2012) <https://www.forbes.com/sites/robertwood/2012/06/04/fbar-penalties-when-will-irslet-you-off-with-a-warning/?sh=1b40e19f363c> accessed 29 january 2022, Robert W. Wood, ‘Despite FACTA, FBAR Penalties Still Under Fire’ Forbes (New Jersey, May 12, 2012) <https://www.forbes.com/sites/robertwood/2012/03/12/despite-fatca-fbar-penalties-still-under-fire/> accessed 29 January 2022 479 Fixing America’s Surface Transportation Act, Pub L. No. 114-94 129 Stat. 1312 (2015) 476

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These reporting requirements and their accompanying penalties for noncompliance pose a significant worry for non-resident US citizens, especially so for “accidental Americans”. In this regard, consider the case of Boris Johnson, the then Mayor of London, who was born in the US, and therefore was a US citizen, but left the US when he was 5 years old. In 2014, Mr Johnson sold his North London home,480 for which under UK tax law no capital gains tax was required on the proceeds from the sale of a main residence. Such a capital gains tax was however required under US tax law.481 While Mr Johnson initially attempted to resist paying the near $50,000 capital gains tax, with an upcoming visit to the US and the prospect of facing the severe penalties enforced by the US Internal Revenue Service for wilful non-compliance, he eventually acquiesced and paid the tax.482 Despite the vilification received by the US’ Citizenship-Based Taxation system by non-resident US citizens, attempts to abolish the US’ Citizenship-Based Taxation regime and replace it with Residence-Based Taxation have failed.483 While the system, with its accompanying compliance tools such as FACTA can enforce compliance, it’s application on “accidental Americans” and all nonresident US citizens is overly excessive and burdensome. While non-resident US citizens may be able to avail certain kinds of tax credits to avoid double taxation, the US does not have double tax treaties with all countries in the world and non-compliance, even non-wilful, still carries hefty civil penalties. An “accidental American”, born in the US to non-US citizen parents, having lived outside the US for the vast majority of their life, on a modest income and having no family connection, permanent home, time spent or employment within the US, could still be subject to US income tax, its reporting requirements and the severe penalties that accompany it’s non-compliance.

480

Patrick Wintour, ‘Boris Johnson among record number to renounce American citizenship in 2016’ The Guardian (London, 9 February 2017) <https://www.theguardian.com/politics/2017/feb/08/boris-johnsonrenounces-us-citizenship-record-2016-uk-foreign-secretary> accessed 29 January 2022 481 BBC, ‘London Mayor Boris Johnson agrees to pay US tax bill’ (London, 22 January 2015) <https://www.bbc.co.uk/news/uk-politics-30932891> accessed 29 January 2022 482 ibid 483 “H.R. 7358 — 115th Congress: Tax Fairness for Americans Abroad Act of 2018.” www.GovTrack.us. 2018. January 29, 2022 <https://www.govtrack.us/congress/bills/115/hr7358>

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The adoption of such a blanket Citizenship-Based Taxation regime would be inadvisable within the UK not only due to the dubious ethical foundation of such a scheme, as it is clearly in violation of the Benefits Received Principle, but also due to the financial costs of monitoring and chasing up the tax returns of the roughly 6 million UK-citizen non-residents, nearly 10% of the UK population.484 While a blanket Citizenship-Based Taxation regime would be capable of taxing citizens who relocate for tax purposes to a country with a preferential personal income tax regime, it is a blunt instrument. It would unfairly disadvantage non-resident UK citizens with little to few ties to the UK besides their citizenship and those who do not qualify as high-income earners. The adoption of a more focused and conditional Citizenship-Based Taxation system is therefore desirable, ethically and financially. In this respect, we have the conditional Citizenship-Based Taxation regimes applied in Continental Europe to consider. 1.2.2 Conditional Citizenship-Based Taxation There are a few states which operate a conditional form of Citizenship-Based Taxation as a measure of combating tax avoidance through relocation, including a number of EU Member States such as Spain and France. Spain operates what is referred to as a “tax quarantine” system. Should a Spanish citizen move to a country deemed to be a tax haven by the Spanish tax authorities, they remain liable under Spanish law to be taxed during the year of the relocation and the following four years.485 The blacklist of countries considered to be tax havens consists of 48 countries in total, including the 484

BBC, ‘Brits Abroad - Highlights’ <http://news.bbc.co.uk/1/shared/spl/hi/in_depth/brits_abroad/html/> accessed 29 January 2022 485 Ley 35/2006, de 28 de noviembre, del Impuesto sobre la Renta de las Personas Físicas y de modificación parcial de las leyes de los Impuestos sobre Sociedades, sobre la Renta de no Residentes y sobre el Patrimonio, Jefatura del Estado, «BOE» núm. 285, de 29 de noviembre de 2006. Translated the relevant provision, art 8(2), reads: “Natural persons of Spanish nationality who prove their new tax residence in a country or territory considered a tax haven will not lose the status of taxpayers for this tax. This rule will apply in the tax period in which the change of residence takes place and during the following four tax periods.”

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following fellow EU Member States: Cyprus, Malta and Luxembourg. Those countries that have however concluded a double tax treaty or a treaty of the exchange of information with Spain are then deemed to be excluded from the blacklist upon the relevant treaty’s entry into force. This is the case for 15 of the 48 countries on Spain’s blacklist which incidentally now includes all 3 EU Member States on the list.486 Several measures are then applied to transactions related to the tax havens to prevent tax erosion through the tax havens. This includes the “Disallowance of expenses invoiced by residents in low tax jurisdictions, unless the taxpayer can prove that the transaction is genuine.”487 A specific example of such a measure designed to combat the usage of tax residence mobility for tax avoidance is the International Agreement on Taxation and Protection of Financial Interests between Spain and the United Kingdom on Gibraltar (2019)488. With Gibraltar having been on the blacklist of jurisdictions deemed to be tax havens by Spain, the Agreement was reached specifically to “eliminate tax fraud” and conflicts arising from residency mobility489. The Agreement applies tie-breaker rules where there is a conflict of residency. Such a situation will be resolved in Spain’s favour should any of the following criteria apply: (i) The individual spends more than 183 overnight stays in Spanish territory; or (ii) The spouse (or partner in a similar relationship), and/or economically dependent ascendants and descendants, have their habitual residence in Spain; or (iii) The individual’s only permanent home is in Spain; or (iv) At least two-thirds of the individual’s net assets are located in Spain.490

486

Tax Partners, ‘List of Low Tax Jurisdictions in Spain’ <https://www.accountinginspain.com/list-of-taxhavens-for-spain/> accessed 30 January 2022 487 ibid 488 Gibraltar Government, ‘International Agreement on Taxation and the Protection of Financial Interests between the UK and Spain regarding Gibraltar’ (Gibraltar, 13 March 2021) <https://www.gibraltar.gov.gi/new/sites/default/files/press/2019/Press%20Releases/Text%20of%20Tax%20 Treaty%20in%20English.pdf> accessed 31 January 2022 489 International Adviser, ‘Spain, Gibraltar and UK reach tax residency agreement’ (London, 1 June 2021) <https://international-adviser.com/spain-gibraltar-and-uk-reach-tax-residency-agreement/> accessed 31 January 2022 490 International Agreement on Taxation and the Protection of Financial Interests between the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland Regarding Gibraltar (2019), Art 2(1)(b)(i)(A)-(D)

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The Agreement however goes further than simply establishing tax residence criteria for individuals to eliminate tax fraud; and introduces a similar 4-year tax quarantine system, currently in place for Spanish citizens, for Spanish tax residents that do not possess Spanish citizenship who move their residency to Gibraltar, subject to certain exceptions.491 The Spanish measures were explicitly modelled off the measures adopted by France vis-á-vis Monaco with the rules having been introduced “in line with the Tax Agreement between Monaco and France not allowing to the nationals of the latter State (Spaniards, in our case) to become Monaco tax residents (Gibraltar tax residents, in our case) if they move their residence after the signature of the Tax Agreement”.492 The agreement between France and Monaco493 requires French citizens who are resident in Monaco to be subject to French personal income taxation, subject to certain exceptions, under the same circumstances as they would have been had they been French residents.494 These circumstances are that they have their home or main place of residence on French territory, carry out a professional activity in France, have their centre of economic interests in France, or be an administrative agent exercising their functions or on mission in a country without personal income taxation.495 These provisions were entered into due to the drastic differences between French and Monégasque personal income tax regimes. Under Monaco’s

491

International Agreement on Taxation and the Protection of Financial Interests between the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland Regarding Gibraltar (2019), Art 2(1)(c)(ii) 492 Albert Mestres, ‘New rules for determining tax residence between Spain and Gibraltar’ Toda & Nel-Lo (Barcelona, 27 March 2019) <https://www.todanelo.com/en/topicality-legal/new-rules-determing-taxresidence-between-spain-and-gibraltar> Accessed 31 January 2022 493 Principality of Monaco, ‘France-Monaco Tax Treaty (1963)’ Gouvernement Princier (Monaco, 18 May 1963) <https://www.legimonaco.mc/305/legismclois.nsf/db3b0488a44ebcf9c12574c7002a8e84/a7ab7aa3f21e31c3 c1257c5a002f1824!OpenDocument&Highlight=0,rendant,exécutoire,à,Monaco,la,Convention,fiscale,signée ,à,Paris,le,18,mai,1963> accessed 31 January 2022 494 France-Monaco Tax Treaty (1963), Art. 7 495 French General Tax Code, Art 4(B)

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personal income tax law, residents do not pay an income tax whereas France operates an income splitting system with progressive rates from 0% to 45%. Prior to the France-Monaco conditional Citizenship-Based Taxation regime coming into force, French citizens could escape French personal income tax by shifting their residence to Monaco. Following the Treaty’s entry into force, French citizens who had ordinarily been resident in Monaco for less than 5 years as of 13 October 1962, or transferred their residence to Monaco after the treaty’s entry into force would still be subject to French personal income taxation. With the two different kinds of Citizenship-Based Taxation, blanket and conditional, American and Continental, it ought to be qualified as to which form of Citizenship-Based Taxation would be preferable for adoption within the UK to combat higher-income earner flight to jurisdictions with preferential personal income tax regimes. The tax quarantine system for Spanish citizens and noncitizens would ensure that high income earners cannot circumnavigate measures to combat high earner flight to preferential personal income tax regimes by renouncing citizenship. Such citizenship-renouncement measures are adopted by US citizens seeking to escape the US’ blanket Citizenship-Based Taxation system. While a blanket Citizenship-Based Taxation is inappropriate, adopting a similar measure as the Spanish system for tax resident citizens and noncitizens relocating to tax havens would pre-empt citizenship-renouncing countermeasures. The Spanish measures build on France’s treaty with Monaco that similarly targets residents seeking to circumvent French personal income tax law through relocation to tax havens based on their citizenship. Conclusion Currently under the UK’s income tax law, non-residents are only subject to tax on UK-sourced income. This, however, fails to address the flight of highincome earners to countries with preferential personal income tax regimes. Oddly enough, the UK does have a kind of what could be considered a global income tax. This targets the recipients of student loans for higher education

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study from the non-departmental public body, the Student Loans Company, even if they move overseas. Typically, recipients of this loan are required to pay 6-9% of their monthly income with interest amounting to 1.25% to Retail Price Index plus up to 3%, depending on the kind of student loan and the individual’s income.496 They are required to pay the same amount that they will have been paying as UK residents despite their non-resident status. The adoption of a Continental-style of conditional Citizenship-Based Taxation would not therefore be entirely without precedent and it would effectively combat the relocation of higher-income earners’ flight to jurisdictions with preferential personal income tax regimes. If the UK can chase the recipients of student loans around the world for the purpose of student loan repayment, then it ought to do so for high-income earners practising tax avoidance through relocation.

496

UK Government, ‘Repaying your student loan’ <https://www.gov.uk/repaying-your-student-loan/whatyou-pay> accessed 29 January 2022

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Consent and Colonialism in Customary International Law: How the West’s Disproportionate Influence Belies the Consent-Based Nature of International Law Aoibhín Spriggs Introduction When determining to what extent the creation of custom belies the consentbased nature of international law, it is necessary to distinguish between theory and the practice between states. In theory, states are ‘tacitly’ consenting to be bound by customary law, however as Dumberry notes, this voluntarist theory does not represent the actual practice of states and strains the idea of consent.497 We must instead examine to what extent states actually and expressly consent to the creation of customary laws, and what this can tell us about the extent to which international law is consent based. In this essay, I will argue that the previously colonial powers have a disproportionate impact on the creation of customary international law, belying the voluntarist theory. I will examine the various factors in the creation of customary international law, and then question the extent to which international law in general is consent- based. State practice In determining state practice, the ICJ required that the state practice be general, representative, and consistent. However, in practice the inquiries of the court might often fail to be representative, undermining the importance of consent of less powerful states. Roberts argues that ‘courts tend to focus primarily on Western state practice’.498 This may be because, as Chimni highlights, there is a general lack of information available on Third World customs, which ‘compounds the problem' of generating customary norms that favour the global north.499 In 497

Dumberry ‘Incoherent and Inconsistent: The Concept of Persistent Objector Revisited’, (2010) 59 ICLQ 779-802 [795]. 498 Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’, (2001) 95 American Journal of International Law 757-791. 499 Chimni, ‘Customary International Law: A Third World Perspective’ (2018) 112(1) AJIL 1–46.

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contrast to this desert of information on the practices of Third World countries, the UK produces an annual collection of its own practice. Many Third World countries lack the resources to follow suit, and often only the most powerful have enough resources to publicise their acts and opinions to the same extent. Such a difference in publication widens the gap between developing and developed states and affects the very notion that international law is consent based, as not all states can make it clear what they consent to, and their consent or lack thereof is given less weight, also undermining the idea of equal sovereignty, a foundational principle in international law that all states should be treated as equals. Specially Affected States The ILC have held that in assessing the generality of custom, it must be considered the extent to which those states likely to be particularly affected have participated in the relevant practice500. In theory, this upholds the consent-based nature of international law. However, as Yip and Galindo 2017) argue, in practice this diminishes the importance of the consent of Third World countries, as in matters of technological progress it is reasonable to assume that first world countries have a deeper knowledge.501 For example, in the North Sea Continental Shelf Case, the court said state practice could become customary law, ‘provided it included that of states whose interests were specially affected’.502 The ILC states that ‘an indispensable factor’ is the extent to which specially affected states have participated in the practice.503 The advancements and knowledge in tech which the West has may give it a bigger role in the minds of the ILC. Indeed, theirs may be to only voice on issues such as space or nuclear technology, which may affect the global population. Powerful western states wield disproportionate and often decisive influence in determining the content and application of custom Such a doctrine may be used to ‘explain away’ this more significant influence , undermining the consent-based nature of international law for Third World states. Indeed, this doctrine serves to enshrine the distribution of power resources into law.

500

ILC, ‘Draft conclusions on identification of customary international law’ (2018) II, part 2, Yearbook of the International Law Commission. 501 Yip and Galindo, ‘Customary International Law and the Third World: Do Not Step on the Grass’(2017) volume 16, part 2 Chinese Journal of International Law, 251–270. 502 North Sea Continental Shelf Cases (1969) ICJ Rep 3. 503 ILC, ‘Draft conclusions on identification of customary international law’ (n4) [136].

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Persistent Objector The persistent objector doctrine holds that if a state does not want to be bound by customary international law, they simply need to protest at the formation of the rule and continue to protest. This in theory upholds the notion that customary international law is based on consent. However, as Dumberry notes, if state consent is the foundation for the formation of customary law, ‘it should logically follow that a state would simply have to show that it has not expressly consented to one rule in order not to be bound by it.’504 Instead, countries must continually protest the operation of the rule, eventually leaving them an outsider to the rest of the international community. The US’s protest of 12 Nautical Mile Territorial sea required vast resources through their Freedom on Navigation Program which few other states could afford, and which was eventually unsuccessful. Moreover, this doctrine was largely recognised after the process of decolonisation, for example in the Anglo-Norwegian Fisheries case,505 and seemed to emerge to protect western states being bound by customary law they did not create. Dumberry comments that during the period of decolonisation in which new states were emerging, Western states feared losing control over the development of customary law. 506They, and particularly the United States, suddenly embraced the previously obscure concept of the persistent objector. However, although the doctrine may give the Western states some peace of mind, it is not easy to object in practice. Dumberry found no example of where the claimed special status was effective in preventing the application of that rule to the dissenting state.507 Furthermore, many new states have emerged in recent years, and these states would therefore have no ability to protest the formation of custom- as Stein argues their ‘objections came. too late’.508 He further argues hey were born into an international legal system largely based on Eurocentric ideals and have had little opportunity to change it as states cannot unilaterally opt out of 504

Dumberry, ‘Incoherent and Inconsistent: The Concept of Persistent Objector Revisited’ (n1) [795] Anglo-Norwegian Fisheries Case (1951) ICJ Rep 116, [136]. 506 Dumberry ‘Incoherent and Inconsistent: The Concept of Persistent Objector Revisited’ (n1) [783] 507 (ibid) [794]. 508 Stein ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’ (1985) 26 Harvard ILJ, 467-468. 505

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custom. The persistent objector doctrine, although seeming to uphold the consent-based nature of international law, belies this in both theory and in practice. Opinio Juris Judge Cancado Trindade has stated that opinio juris is ‘today endowed with a wide dimension’509 While this may be seen as a positive move, as states must consent to being bound, it is argued that in practice such a turn towards opinio juris could undermine the notionally consent based nature of state practice even further. Galindo and Yip argue that this increased reliance on opinion juris has almost obliterated the process of identification of a customary rule. Furthermore, when searching for opinio juris, there is no requirement that the states find a belief which is representative across the states, and so there is not even lip service paid to attempting to find the opinions of Third World countries. Findings of opinio juris are therefore even more vulnerable to the evidential biases discussed previously in determining state practice. To what extent is international law consent based? In the Lotus Case, the court argued that the rules of international law binding upon states emanate from their own free will as expressed in convention or by usages accepted as expressing principles of law. As Fitzmaurice (Some Problems Regarding the Formal Sources of International Law 2000) argues, the real authority of international law resides in the fact that the states making the international society recognise it as binding upon them. This is the voluntarist theory of international law, which gained prominence after World War two and into the period of decolonisation.510 Indeed, it is argued that much of international law is consent based: states choose to get into treaties with each other, and together they decide what provisions to include. Indeed, they may also use treaties to opt out of certain customary laws, and treaties may in turn form the basis, or crystallisation of, customary international law, as seen in Fisheries Jurisdiction 511 On the other 509

Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India) I.C.J. Reports 2016, p. 255. Dumberry, ‘Incoherent and Inconsistent: The Concept of Persistent Objector Revisited’ (n1) [782] 511 Fisheries Jurisdiction (UK v Iceland), Merits (1974) ICJ Rep 3, [23]. 510

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hand, Article 64 of the Vienna Convention on the Law of Treaties states that if a new peremptory norm emerges, any existing treaty which conflicts with that norm is void. This undermines the consent of states, as expressed to treaties, as they cannot opt out of jus cogens. Moreover, it may be argued that the principle of jus cogens, as basic underlying norms of international law show that international law is not wholly consent based. In the Armed Activities of the Territory of the Congo, the court stated there are principles that are ‘recognized by civilized nations as binding on states, even without any conventional obligations’.512 Jus cogens must be a manifestation of customary international law, and so suffers the same inconsistencies with the voluntarist theory, as well as being accepted as a rule or norm from which no derogation is permitted. Furthermore, what is accepted as jus cogens is not necessarily what everyone would agree to be fundamental- while there are (rightly) prohibitions on aggression and racial discrimination, there is no recognition as a ban against gender discrimination or violence against women as a fundamental norm. 513What is regarded as fundamental to international society are based upon the views of the largely male world leaders. Conclusion While the formation of customary international law is often viewed as the epitome of the voluntarist theory, it has been argued that more often than not it in practice actually belies the consent-based nature of international law, especially when it is viewed from a Third World perspective. However, the principle of jus cogens, and who shapes the norms that eventually attain this status, undermines the idea that international law itself is consent based.

512

Armed Activities in the Territory of the Congo (DRC v Rwanda), Jurisdiction and Admissibility, (2006) ICJ Rep 6,[50]. Charlesworth and Chinkin, the boundaries of international law: a feminist analysis (1st edn, Manchester University Press 2000).

513

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The Good Faith Conundrum: Does it Lurk in the Background or Lead as a Substantive Factor? Farzana Salik I.

Introduction

The duty of good faith is context-specific. According to Leggatt LJ, there are at least two aspects to it: first, ‘honesty’,514 and second, ‘fidelity to the parties’ bargain. 515 The test is whether the conduct would be regarded as ‘commercially unacceptable by reasonable and honest people’.516 In CPC Group Ltd v Qatari Diar Real Estate Investment Co,517 Vos J also added that good faith requires: observing reasonable commercial standards of fair dealing, being faithful to the agreed common purpose, and acting consistently with the justified expectations of the parties. 518 Further, in Gold Group Properties Ltd v BDW Trading Ltd,519 the court held that whilst good faith expected the parties to act in a way that will allow them both to enjoy the anticipated benefits of the contract, it did not require either party to give up a freely negotiated advantage embedded in the contract. In summary, the content of the duty owed will depend on the contractual context. It is likely to extend beyond a bare requirement of honesty and incorporates a requirement of fidelity. The test for breach is objective and a material question will be whether the conduct of the parties was commercially unacceptable. 520 This essay will seek to argue that first, good faith does exist as a general principle in contract law - in the form of express and implied terms - albeit in strictly interpreted terms. Secondly, contrary to popular opinion, it does not 514

[2013] EWHC 111 (QB) at [135]. ibid. at [139]. 516 ibid. at [144]; see also Compass Group UK and Ireland Ltd v Mid Essex Hospital Services NHS Trust at [109] per Jackson LJ and [150] per Beatson LJ. 517 [2010] EWHC 1535 (Ch). 518 At [67]. 519 [2010] EWHC 1632 (TCC) at [91]. 520 Justine Usher, Annabel Evans and Kirsty Payne (2013) ‘Good faith – is there a new implied duty in English contract law?’, Mayer Brown, online. 515

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exist as a background principle. Rather, it is a substantive factor that can be founded on by itself. Lastly, in this context, drawing on Sims’ model, good faith must be reconceptualised in a way that best reflects its sophisticated nature. II.

Positioning Good Faith

A General Principle? Good faith does exist as a general principle, albeit in restricted terms. For example, in some contracts, it can be expressly required, thus making it the forefront of the contract, not an ancillary requirement. It is also possible to impose an express duty to perform the whole contract in good faith. However, the express term will be interpreted by the courts carefully, in the context of the entire contract and the commercial relationship between the parties.521 In Medirest,522 the Court of Appeal held that the obligation of good faith was confined to the specific circumstances contemplated by the clause – the obligation to cooperate in good faith was thus focused upon the two purposes stated. Further, in Fujitsu Services Ltd v IBM UK Ltd,523 the court construed a good faith clause restrictively for three reasons: (i) there was no direct provision for the direct obligation, and (ii) a duty to act in good faith would be otiose where there was a warrant to perform in any event, and (iii) the language contained in the clause was not found to support a general duty of good faith. This, therefore, indicates the willingness of courts to give effect to a contractual term that imposes a general duty of good faith on the parties, and their approach to construing such clauses being restrictive. A Background Principle? Good faith does not exist as merely a ‘background’ to contract law. Rather, it is independent enough to be implied into a contract. In Yam Seng, Leggatt LJ, pointing to examples of relational contracts (particularly, but not intended as exclusive to, joint venture agreements, franchise agreements and long-term distribution agreements), held that a duty of good faith could be implied into a 521

ibid. [2013] EWCA Civ 200. 523 [2014] EWHC 752 (TCC). 522

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commercial contract.524 More recently, in D&G Cars Ltd v Essex Police Authority, the High Court found the existence of an implied term to act with ‘integrity’.525 Dove J held that the test for implying a duty to act in good faith into a commercial contract was no different to any other implied term (with an emphasis on context). Whilst this was done in the context of a contract being ‘relational in nature’, it is not the only factor to be considered. It also includes the nature or character of the obligations provided for by the contract to determine whether, when objectively assessed, the parties intended that their contractual relationship should be governed by a general duty of good faith.526 It has been established that good faith does exist as a general principle in contract law, and not merely a part of the ‘background’. It can also be assumed that, as a matter of precedent, Yam Seng527 will continue to be applied by any court of first instance, unless they are persuaded it was wrongly decided (which seems unlikely). Until the matter is determined by the appellate courts, a duty to act in good faith, where the context permits, is to be implied into commercial contracts governed by English Law. A Substantive Factor? Good faith has been rejected as a substantive factor due to policy concerns. For example, by reference to public policy, Professor Cohen sought to justify subverting good faith for reasons of protecting a parties’ freedom to withdraw from negotiations.528 However, this argument should not be overstated. Particularly, it has less force when applied to good faith negotiation clauses. This is because, notwithstanding the position of negotiating parties being adversarial (as in Walford v Miles)529, the relationship between parties to an existing contract is more often one of co-operation. This can be illustrated through several doctrines of contract law. For example, good faith in collateral tendering contracts show the courts applying their general approach to problems of uncertainty in meaning, to deal with the uncertainty of good faith.530 This is both in the context of contract performance and contract 524

Yam Seng (n 1) at [142]. [2015] EWHC 226 (QB) at [175]. 526 James Hannant, ‘Good faith in English contract law’ (2015) 15 Guildhall Chambers, 2. 527 Yam Seng (n 1). 528 Nili Cohen, ‘Pre-contractual duties: Two freedoms and the contract to negotiate’ in Jack Beatson and Daniel Friedman (eds), Good Faith and Fault in Contract Law (Clarendon Press, Oxford 1995), p. 54. 529 [1992] 2 AC 128. 530 Blackpool and Fylde Aero Club v Blackpool Borough Council [1990] 1 W.L.R. 1195; Fairclough Building Ltd v Port Talbot Borough Council [1992] 62 B.L.R. 8. 525

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formation as courts draw on context to define the scope of the obligation, the test by which it is assessed, and its precise content, in turn exposing a framework that courts can police.531 Instead of viewing good faith as an unfamiliar standard, the courts have thus understood it is as requiring faithfulness to the agreed common purpose. This is a familiar concept, closely related to the purposive approach of interpretation. Its precise requirements in any case are not fixed, external to the parties or invested by judged; they are derived from the intentions of parties. Further, both these areas overlap with negotiation: Gold Group532 illustrates how performing a contract in good faith might require the parties to negotiate to vary its term. Good faith negotiation clauses may also provide contracting parties with valuable flexibility, allowing a contractual venture to continue in changed circumstances. Therefore, it is notable that the cases favouring the enforcement of good faith negotiation clauses involve closely cooperative relationships and make no reference to public policy. There are two additional points that critics of good faith fail to appreciate. First, Sims argues that the question is always how the parties intended a contract to be enforced; and even accounting for the usual caveats about the courts’ ability to determine the parties’ actual intentions, this is still a different standard than the judges’ point of view. 533 What it requires is a purposive interpretation of contracts, focusing on the spirit, rather than the letter of the agreement. Secondly, the interests of parties are only the starting point of the balancing exercise. Whenever parties are considering the implication of a term into a contract, the courts must - and do – look at two other crucial elements: (i) the interests of the market, and (ii) the interests of society as a whole. Good faith is, thus, not ‘nothing but a window for the unprincipled incursion of vague ideas of policy’. Accepting Good Faith as a Substantive Factor Notably, good faith acts as a tool for balancing conflicting interests. These do not run counter to the existence of a general concept of good faith – they are

531

Henry Hoskins, ‘Contractual obligations to negotiate in good faith: faithfulness to the agreed common purpose’ (2014) 130 LQR, 131. 532 Gold Group (n 6) 533 Vanessa Sims, ‘Good Faith in Contract Law: Of Triggers and Concentric Circles’ (2005) 16(2) King's Law Journal, 293.

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instead, integral to it. Take Union Eagle v Golden Achievement Ltd,534 both parties expected and intended the contract to be completed by a specified time on a specified day (the seller had even reminded the buyer of the need to deliver the documents and purchase price on time). But because the buyer was 10 minutes late, he lost his deposit and could not sue for specific performance. The reasoning here focuses on the need for absolute certainty as proof for the undesirability of good faith-based arguments in a commercial context. Indeed, this is the line taken by the Privy Council and Lord Hoffman, in particular. This makes clear that once good faith is correctly understood as closely linked to the individual contract and the parties’ intention in commercial contracts, it not only allows but requires the strict enforcement of deadlines535. Good faith is, however, not synonymous with altruism; parties are not expected to neglect their interests in favour of those of the other side, they are only prevented from using the strict letter of the agreement to subvert its original purpose.536 As such, in Nissho Iwai Petroleum Co Inc v Cargill International SA 537, the buyer was not allowed to undermine the method of communication that had been agreed. But he was not, for example, obliged to have more than one person available to take the nomination. Here, we see good faith acts as a substantive factor - it is closely linked to the individual contract and the parties’ intention. III.

Reconceptualising Good Faith

Of Triggers and Circles Having concluded that good faith exists as its own substantive factor, it is worth exploring how best to conceptualise it. Sims proposes a convincing model – it captures good faith as not only a purely moralistic standard, but one much more closely tied to the parties’ intentions and the interest of the market.538 This is best visualised as a set of circles, concentrically placed around the basic moral notion of honesty, which is the minimum standard of behaviour required by the law from all contracting parties. From this centre point, the different applications of good faith spread out in ever-widening 534

[1997] 2 All ER 215. Sims (n 19). 536 Ibid. 537 [1993] 1 Lloyd’s Rep 80. 538 Ibid. at p.309. 535

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circles. The further the circle is from the centre, the more extensive the duties that will be imposed on the parties. In this model, an individual contract’s position depends on the presence and absence of certain triggers. These are instances in which policy considerations (whether in support of society's moral judgment or other values) limit the extent of the principle of freedom of contract and justify judicial intervention in the performance and enforcement of an agreement. Other triggers are not so much linked to the public’s perception of right and wrong, but considerations of efficiency. The existence of an ongoing relationship between the parties can also operate as a trigger to impose a greater duty of good faith on either side. The advantage of this model is that it is not limited to only cases of the commercial seller and consumer buyer. Rather, parties are free to adduce evidence of imbalances in any contract, including purely commercial agreement. This avoids the artificial differentiation between commercial and consumer contracts, by focusing on the question of whether, on the facts, there existed between the parties a gradient of some sort that could potentially be exploited by the stronger party. Yet, it is not without criticism. Whilst the picture of concentric circles identifies different standards of good faith, it is yet to answer what amounts to a breach in each individual case. Nevertheless, by advancing Sims’ analysis of triggers to investigate other potentially relevant factors, this conception of good faith can be fully fleshed out. IV.

Conclusion

Good faith exists in contract law, not as a ‘background’ factor, but a substantive one. While it cannot be denied that the recognition of this as a general principle will lead to some uncertainty in the law, English courts are ‘uniquely suited to the task’. Already accustomed to distilling general principles from bodies of case law, there is no doubt that developing jurisprudence of good faith is possible. As the number of cases grows, each aspect of good faith – application, breach, triggers – will crystallise into a body of law ‘solid enough to be certain, flexible enough to be fair’.

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Cross-Border Money Laundering and the Financial Action Task Force (FATF): Examining the Effectiveness of the International Responses Recommended by the FATF, its application in the EU and UK and Global Money Laundering Activities using Virtual Assets. Oluwabunmi Anjolaoluwa Adaramola The Financial Action Task Force (FATF) describes itself as the global money laundering and terrorist financing watchdog. This is true, to the extent that it sets international standards related to the monitoring, supervision and prohibition of money laundering activities in over 180 countries. However, even with the plethora of laws, regulations and regimes established by FATF member countries, money laundering remains a global issue, especially with the emergence of virtual assets and the global nature of the digital asset ecosystem. Essentially virtual assets have become a force to be reckoned with in 21st century financial and technological developments. The question therefore remains: how effective are the FATF responses to cross-border money laundering challenges in an era of the susceptibility of virtual assets for financial crimes? To this end, this paper therefore seeks to detail the various responses put forward by FAFT regarding the different strands of money laundering and the financial ecosystem. Introduction With the rapid increase in globalization, increasing interconnectedness of the world’s financial system and development of new technologies, recent years have seen financial crimes become increasingly globalized. This thus allows ‘illegally’ obtained financial instruments ‘move easily and swiftly across jurisdictions in huge volumes.’539 Organized crimes such as drug trafficking, fraud and insider trading have now infiltrated financial institutions around the world, where the funds generated from these crimes are being laundered. The Joint Money Laundering Steering Group540, defines money laundering as ‘a process whereby criminals attempt to hide and disguise the true origin and

539

S.Y Kang, ‘Rethinking the Global Anti-Money Laundering Regulations to Deter Corruption’ (2018) International and Comparative Law Quarterly 67(3) 697 N Ryder, ‘The Financial Services Authority and Money Laundering-A Game of Cat and Mouse’ (2008) The Cambridge Law Journal 67(3) 635-637

540

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ownership of the proceeds of their criminal activities.’541 Money laundering has now become a coordinated global problem which, if not effectively dealt with, can cause severe domino consequences for the global financial system. In order to do so, this requires the effective assistance and participation of intermediaries and international bodies to combat, by taking measures to criminalize money laundering in various jurisdictions. This paper therefore seeks to critically assess the global response to combating money laundering by the Financial Action Task Force (FAFT), examining the effectiveness of its Anti-Money Laundering (AML) initiatives in tackling and criminalizing money laundering in various jurisdictions, especially as it relates to the use of virtual currencies. The first section provides a brief discussion and analysis on money laundering activities, their effect on financial systems and the subsequent need to tackle it. The next section assesses the work done by FAFT, regarding its 40 recommendations, paying attention to the emergence of virtual assets and virtual asset providers. Along this backdrop, the final section analyses the implementation of the FATF initiatives taken by the EU and its implementation in the U.K. In doing so, this will address the realistic effectiveness of FATF, concluding as to whether international responses have done too little or too much, such that it creates inefficiency, in tackling the global issue of money laundering. An Overview of Money Laundering, Virtual Currencies and the Digital Economy In his article, Ryder draws out the origins of money laundering, especially the attention it received from the international community, as beginning in the early 1980s, ‘through an attempt to counteract the illegal drugs trade in 1989.’542 From then on, money laundering activities have taken on an even more sophisticated and complicated approach. Organized crimes have even become more international, penetrating across various financial systems through the advent of new technology, especially with the intensified global growth of new financial instruments such as cryptocurrencies and virtual currencies (such as Bitcoin). The global community has recognized three stages through which money laundering activities occur- placement, layering and integration. The 541

Ibid 365 N Ryder, ‘The Financial Services Authority and Money Laundering-A Game of Cat and Mouse’ (2008) The Cambridge Law Journal 67(3) 635-637

542

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placement stage involves a process of essentially introducing crime proceeds into the economy. This can be the financial system or ‘retail economy’, usually done through a process called ‘smurfing’. As such, large proceeds from criminal activities are separated into smaller amounts and deposited in various financial institutions in various jurisdictions or sectors. The layering stage often allows money launderers enter into transactions such as buying shares or acquiring commercial property, to ‘successfully’ distance the illegal funds from their original source. Once this is done, the illegal funds are now able to successfully enter the economy as clean money, thus giving more meaning to the popular ‘turning dirty money into clean money’ definition of money laundering. search into money laundering activities, therefore, shows that money launderers have a more likely tendency to carry out their activities in countries, jurisdictions or sectors that ‘there is a low-risk detection.’543, due to the weak and ineffective anti-money laundering regulations in such areas and high levels of corruption and financial crimes by government officials, making these areas highly viable for money laundering activities. Sung Yong in an article explains that ‘many corruption cases have demonstrated that corrupt officials are laundering illegal gains in diverse ways using financial institutions.’544 They are therefore able to hide their sources and gains through the financial system and its intermediaries in both domestic and foreign jurisdictions. In a paper published regarding virtual assets by FATF, its definition describing virtual assets as a digital representation of value has now been widely accepted as the international standard. Virtual financial assets (virtual currencies) have now become such a global wave that seems to in its own way, have shaken up traditional payment systems and conventional financial systems, eliminating the need for third-party institutions or financial intermediaries. This removes potential transaction costs, a big win for cryptocurrency and other forms of virtual assets. FATF’s paper describes virtual currencies as providing an even new and advanced powerful tool for “criminals, terrorists, financiers and other sanction evaders to move and store illicit funds, out of the reach of law enforcement and other agencies.”545 FATF further distinguishes virtual 543

Financial Actions Task Force, Frequently Asked Questions: Money Laundering. (2022) FATF <https://www.fatf-gafi.org/faq/moneylaundering/#d.en.11223> accessed 17th November 2021. S.Y Kang, ‘Rethinking the Global Anti-Money Laundering Regulations to Deter Corruption’ (2018) International and Comparative Law Quarterly 67(3) 697 545 Financial Actions Task Force Report, ‘Virtual Currencies: Key Definitions and Potential AML/CFT Risks’ (2014) FATF <https://www.fatfgafi.org/media/fatf/documents/reports/Virtual-currency-keydefinitions-and-potential-aml-cft-risks.pdf> accessed 27 April 2021. 544

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currency from digital currency where the latter can mean “a digital representation of either virtual currency or e-money that is fiat money.”546 It is worth pointing out that all the various definitions of virtual assets put forward by various authorities are similar in how they define them as a medium of value, having no legal basis or governing authority, but nevertheless, still accepted and used globally. The Role of the Financial Action Task Force (FATF) as a Specialist Institution in Relation to Financial Crimes The FAFT was established by the summit of the group of 7 industrialized nations (G7) in Paris in 1989. Upon establishment, their main aim was to ‘develop a coordinated international response’547 due to the growing concerns of money laundering, especially with the rise of illicit funds gotten from organized financial crimes. As such, the G7 set out 40 recommendations that required national governments to implement certain measures to ensure effective global AML regimes. It should be noted that in 2018, FAFT added 9 special recommendations to the 40, specifically targeted to Combating the Financing of Terrorism (CFT). Holt accurately points out that ‘FAFT standards have since 1990, become the dominant global standards, adopted by more than 180 countries worldwide, as well as in 2 regional organizations.’548 A major appraisal of the FAFT strategies for implementation is that the strategy understands that because of the differences in the legal, regulatory, administrative and operational framework as well as financial systems in nations, ‘the implementation of its recommendations will vary from one country to another.’549 As such, the recent reviews of the FATF recommendations address issues regarding the strengthening of existing obligations for state implementation and strengthening the risk-based approach in implementation.550 This risk-based approach includes ‘identifying, assessing

546

Ibid Financial Actions Task Force, Frequently Asked Questions: Money Laundering. (2022) FATF <https://www.fatf-gafi.org/faq/moneylaundering/#d.en.11223> accessed 17th November 2021. 548 Financial Actions Task Force, 40 Recommendations (2021). FATF. <https://www.fatfgafi.org/publications/fatfrecommendations/documents/fatf-recommendations.html> accessed: 17th November 2021 549 P Holt, ‘Money Laundering: The Global Response and Its Likely Effectiveness’.[2015] 550 Financial Actions Task Force Report, Virtual Assets and Virtual Asset Providers: An Updated Guidance for a Risk-Based Approach. (2021) <https://www.fatf547

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and understanding the money laundering and terrorist financing risks for the country and take action to assess such risks with available resources’.551 Countries with higher risk are encouraged to have strong AML/CFT regimes that adequately assess and address these risks, with enough resources allocated to this specific aim. This, therefore, means that enforcers (Financial Intelligence Units (FIU’s), policymakers, law enforcement authorities and so on) should have effective implementation measures at hand to tackle money laundering in their jurisdictions. To this aim, financial institutions as stipulated under Recommendation 10 are required to undertake ‘customer due diligence (CDD)’ when assessing business transactions with customers, especially if the transactions are above the $15 000 threshold. Whilst FATF requires this to be set out by law, each country is encouraged to determine how to impose this requirement through the law and its enforcement authorities. These should also include an obligation for financial institutions to maintain ‘necessary records on transactions, either international or domestic’552 as expressed in Recommendation 11. Embedded within CDD measures also, are requirements for financial institutions to assess and take ‘reasonable steps’ to determine who is a Politically Exposed Person (PEP’s) and carry out necessary CDD measures. This, FATF explains, is in order to determine if there could be higher risks in doing business with such customers and take necessary prospective steps to this. Within Recommendation 15 and 16, FATF also recognizes the rapid development and expansion of businesses into new technologies. This then creates provisions as to how to handle money laundering activities that may arise from the use of these new innovations. Recent amendments to the FATF 40 Recommendations have not only added Virtual Assets and Virtual Asset Service Providers to the glossary, but through Recommendation 15, now requires ‘virtual asset service providers to be regulated for anti-money laundering and countering the financing of terrorism purposes, licensed or registered and subject to effective systems for monitoring or supervision.’553 In gafi.org/media/fatf/documents/recommendations/Updated-Guidance-VA-VASP.pdf> accessed 10 January 2022. 551 Ibid 552 Financial Actions Task Force, 40 Recommendations (2021). FATF. <https://www.fatfgafi.org/publications/fatfrecommendations/documents/fatf-recommendations.html> accessed: 17th November 2021 553

Financial Actions Task Force Report, Virtual Assets and Virtual Asset Providers: An Updated Guidance for a Risk-Based Approach. (2021) <https://www.fatfgafi.org/media/fatf/documents/recommendations/Updated-Guidance-VA-VASP.pdf> accessed 10 January 2022.

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line with this, as of June 2019, an interpretative note was added by FATF to Recommendation 15 regarding the application of the FATF’s risk-based approach to virtual assets and virtual asset providers. This now meant that only competent government bodies could supervise or monitor virtual asset service providers for AML/CFT purposes, empowering national authorities to identify and take action against natural or legal persons who undertake virtual asset activities without the required license or registration and take preventive or enforcement measures against the misuse of virtual assets. Furthermore, under Recommendation 20, FATF requires financial institutions and those involved in financial transactions (lawyers, auditors, accountants), to ‘report any suspicions (or reasonable grounds of suspicion) of funds gotten from criminal activity or related to terrorist financing, to its FIU.’554 This also means that they are prohibited by law from ‘tipping off’ the fact that the above has been reported. It is worth noting that part F of the recommendations outlines clearly, the powers and responsibilities of the various enforcement authorities a country should have, how they should be set up to ensure the effective implementation of AML/CFT regimes, and specifically, their role in regulating and supervising financial institutions. There is a further requirement for countries to assess, to their discretion, what sanctions should be imposed and who the sanctions should be applicable to under Recommendation 35. Most importantly, FATF also requires, through part G, international cooperation to tackle money laundering, stipulating that countries should become party to other international instruments for combating money laundering and terrorist financing. Additionally, countries should also, ‘provide mutual legal assistance to one another in relation to money laundering, associated predicate offences and terrorist financing investigations, prosecutions and related proceedings.’555 It is worth establishing further, that FATF lays the foundation for many global responses to combating money laundering activities. As such, the next section will, for the purpose of this paper, analyze the further adoption and implementation of the FAFT recommendations in the EU (a regional organization) and how it has been construed in the UK.

554

Financial Actions Task Force, 40 Recommendations (2021). FATF. <https://www.fatfgafi.org/publications/fatfrecommendations/documents/fatf-recommendations.html> accessed: 17th November 2021 555 Financial Actions Task Force, 40 Recommendations (2021). FATF. <https://www.fatfgafi.org/publications/fatfrecommendations/documents/fatf-recommendations.html> accessed: 17th November 2021

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The EU and UK’s Implementation of the FATF 40 Recommendations in its AML Regulations The EU, taking its lead from the FATF 40, has established and implemented various directives and regulations to encourage AML regimes within its jurisdiction, with its most recent being the 5th AML directive. It is important to note that whilst this was introduced in 2016, Looseveld explains that this directive entered into force on the 9th of July 2018 and must subsequently be implemented by all 28 member states into their own national laws by 2020. Essentially, the overall aim of the 5th directive is ‘to overcome three perceived deficiencies under the current system.’556 These are closing the various gaps in: increasing advances in technology in the global financial system, the transparency of financial transactions around the world and an oversight of the manifold financial systems.557 Furthermore, one important aim of this new directive is to ‘clarify and harmonise the enhanced due diligence measures (EDD) within business relationships especially in transactions involving highrisk third countries.’558 As such, these measures particularly revolve around ’carrying out CDD and reporting suspicious transactions under EU Law’559, specifically related to within credit institutions, financial institutions and professions like auditors, accountants and even lawyers. This thus makes such institutions and professions vulnerable to EU and national law, whilst carrying out AML/CFT objectives. Particularly, this new directive focuses on combating terrorist financing (CFT) within the EU jurisdictions and also extends AML to the use of virtual currencies and cryptocurrencies online in financial transactions. The 5th EU AML Directive attempts to correct and update AML regimes regarding this new technology, by focusing on closing the gaps created by new technology within the EU, to ensure that there are no loopholes for money launderers to hide in the virtual financial world. Additionally, regarding 556

S Looseveld, ‘The 5 th Anti-Money Laundering Directive: Virtual Currencies and Other Novelties’ [2018] Journal of International Business Law Review 557 Ibid 558 P Poldma and R Dipple, ‘New EU and UK Anti-Money Laundering Rules: The Fifth AML Directive Extends to Cryptocurrencies’ (Mondaq, 17 September 2018) <http://www.monaq.com/uk/x/736780/Money+Laundering/New+EU+and+UK+Antimoney+Laundering+R ules+The+Fifth+AML+Directive+Extends+To+Cryptocurrencies/> accessed on: 27th April 2021. 559 Clifford Chance, Implementation of the EU’s Fifth Money laundering Directive [2018]. <http://www.cliffordchance.com/publications/> accessed 29 April 2021.

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its CFT aim, the 5th Directive also links the potentiality of virtual currencies, to be ’abused to conceal transactions related to terrorist financing.’560 In the UK, apart from its previous adoption of the 1st to 4th ML Directive, there are several localized legislations that have been adopted by the UK to establish and implement global AML/CFT policies. It is worth noting that although the UK officially left the EU on the 31st of January 2020 and entered a transition period which formally ended on the 31st of December 2020, the EU’s 5th AML Directive is still applicable in the UK. This is firstly because the implementation date for the Directive in the UK was on the 10th of January 2020, well within the time the UK was still an EU Member State. Additionally, the EU Withdrawal Act 2020 gave rise to the UK’s “onshoring of EU Financial Services legislation which applies into UK domestic laws.”561 This essentially means that these laws on shored into UK domestic laws are not affected by Brexit, at least in the short term. Turner and Bainbridge establish that ‘the foundation of the current AML regime in the UK were laid through the Proceeds of Crime Act 2002562, the Terrorism Act 2000, the Money Laundering Regulations 2007’563, with the most recent being the Criminal Finances Act 2017 and Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017. Apart from adopting the key recommendations of FATF, AML laws in the UK have identified three money laundering offences and two ancillary offences. These include concealing criminal property derived from criminal conduct, arrangement, acquisition and use of criminal property. It should be noted that the ancillary offences are those covered under Recommendation 20 and 21 of FATF, dealing with a failure to make a disclosure or tip off of knowledge or suspicion of money laundering activities. Apart from these, it is widely held that UK AML includes a ‘wide definition of criminal conduct with increasing

560

P Poldma and R Dipple, ‘New EU and UK Anti-Money Laundering Rules: The Fifth AML Directive Extends to Cryptocurrencies’ (Mondaq, 17 September 2018) <http://www.monaq.com/uk/x/736780/Money+Laundering/New+EU+and+UK+Antimoney+Laundering+R ules+The+Fifth+AML+Directive+Extends+To+Cryptocurrencies/> accessed on: 27th April 2021. 561 Laura Douglas, ‘A General Introduction to the Regulation of Virtual Currencies in the U.K’ in N.S. Sackheim and N.A Howell (eds), Virtual Currency Regulation Review (3rd edn, The Law Reviews, 2020). 562 Proceeds of Crime Act 2002. 563 S Turner and J Bainbridge, ’An Anti-Money Laundering Timeline and the Relentless Regulatory Response’ [2018] Journal of Criminal Law 82(3) 215

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obligations on the private sector’564 regarding combating money laundering and terrorist financing. Particularly so, regarding the 2007 Act, Turner and Bainbridge highlight the fact that this Act is an indication of the ‘increased strength and reach of the UK’s latest AML legislative developments.565 As such, taking its lead from EU directives and FATF as well, there is a further implementation of CDD measures, with added alternatives of enhanced due diligence or simplified due diligence requirements within financial services sector and the private sector. There are, however, issues levelled against the existence of numerous UK AML legislations, as it has been regarded as becoming too problematic and overcomplicated. For instance, it has been argued that there is no guidance on how to interpret what suspicion or suspicious grounds is under both UK law and FATF recommendations for AML, as well as numerous compliance issues. Essentially, UK AML frameworks have been regarded as being too ‘heavyhanded, complex and expensive to implement.’566 Based on this, there is a call by Ryder for ‘one single money laundering act’567 which creates more benefit for the UK’s AML regime. An Overall Critique of the FATF’s AML Framework While there has been positive reception of the recommendations in many jurisdictions over the years, academics have pointed out several weaknesses particularly with compliance, implementation and enforcement within national AML regimes. One important note levelled as criticism is regarding the ‘reasonableness’ expectation. It has been debated that there are no current guides presented in FATF as to how this should be construed, and with reasonableness being a subjective term, the interpretation under this recommendation may vary and end up not construing the true intention of FATF. Holt explains regarding this that ‘further compliance issues and difficulties may arise due to different methods of implementation.’568 Turner and Bainbridge in their article describe the FATF 40 as ‘scattered with 564

S Turner and J Bainbridge, ’An Anti-Money Laundering Timeline and the Relentless Regulatory Response’ [2018] Journal of Criminal Law 82(3) 215 Ibid 566 Ibid 567 N Ryder, ‘The Financial Services Authority and Money Laundering-A Game of Cat and Mouse’ (2008) The Cambridge Law Journal 67(3) 635-637 568 P Holt, ‘Money Laundering: The Global Response and Its Likely Effectiveness’.[2015] 565

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references to effectiveness, with little attempt to define its meaning.’569 This includes references to effective use of resources and efforts, management of risks, mechanisms for cooperation and so on. Essentially, FATF 40 fails to address what effective is and what standard is required for effectiveness under national law. As such, where there is a lack of guidance and explanation as to the level of effectiveness expected or what it means, this may highly affect implementation strategies. More so, with the structure of FATF and how it is designed for ‘countries with strong legal, administrative and enforcement frameworks’, having ‘substantial investment in human and financial capital’’570, this may prove difficult for third world high-risk countries, which have high corruption of government officials or countries with ‘lack of positive innovations, non-compliant civil societies without active control over its borders’571according to Holt. As such, this contributes to the lack of effective enforcement on the part of countries as such, that have adopted FATF recommendations. This has subsequently led to many countries cited on and retaining positions on FATT’s blacklist. Importantly, others have also held the belief that the 40 recommendations entirely ‘violates the principles of sovereign equality and territorial integrity of states.’572 However, this argument fails to consider the fact that not only is FATF non-legally binding, but there is also no further obligation for countries to give up their territorial integrity or sovereignty as, for instance, not all countries in the world adopt the FATF standards. Conclusion Schroeder establishes that ‘globalization has turned the international financial system into a money launderer’s dream.’573 To rid the system of this, international responses clearly embody proactive steps and efficient measures in dealing with money laundering activities, as seen from FAFT and the EU. It is now evident however, that while money laundering is a global problem, many responses have now become domesticated. While this is a good response in

569

S Turner and J Bainbridge, ’An Anti-Money Laundering Timeline and the Relentless Regulatory Response’ [2018] Journal of Criminal Law 82(3) 215 P Holt, ‘Money Laundering: The Global Response and Its Likely Effectiveness’.[2015] 571 P Holt, ‘Money Laundering: The Global Response and Its Likely Effectiveness’.[2015] 572 P Holt, ‘Money Laundering: The Global Response and Its Likely Effectiveness’.[2015] 573 W R Schroeder, ’A Global Threat and the International Community’s Response [2001] FBI Law Enforcement Bulletin 1 570

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some respects, critics have described such ‘localized and centralized’574 responses as entirely lacking. As such, global money laundering activities, even within the EU and FATF, have now remained in an age where ‘cheques and money transfers took 5 days to clear’575 as opposed to following recent techsavvy trends. Additionally, with the differences in jurisdictions, there is a lacking harmonized approach at the international level to tackle money laundering issues. While there is still a lot being done at the international level, AML responses can still benefit from more harmonized approaches in the years to come.

574

T Keatinge, ‘We cannot Fight Cross Border Money Laundering with Local Tools’ [2018] The Financial Times. < https://www.ft.com/content/0397fc40-b281-11e8-87e0-d84e0d934341> accessed 27 April 2021. 575 Ibid

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