Per Incuriam Michaelmas 2024

EXAM TIPS FROM TOP SCORERS

FIRST CLASS TRIPOS ESSAYS

President’s Foreword

Dear Readers,

Welcome to Per Incuriam, Michaelmas 2024 edition! Firstly, I would like to offer my sincerest congratulations to the Per Incuriam Editorial team for successfully rolling out this winter’s edition. Thank you to Editor-in-Chief Ewan O’Mahony, and Deputy Editors Chloe Levieux and Alpha Ngai for your hard work throughout term, in meticulously sifting through numerous essays and putting together a cohesive narrative for this issue.

Per Incuriam continues to be an important part of CULS, by providing our members with high quality academic essays, and student-written articles on salient topics We hope that this edition of Per Incuriam remains inspiring and thought-provoking –academically and beyond! In the same vein, I would like to thank the generous contributors for this edition, without which this edition would not be possible

Michaelmas was a term to remember –from hosting 45 events in the span of 8 weeks and meeting countless new faces, to celebrating the end of term at our 123rd annual Law Ball! Throughout this 2-month period, we have successfully expanded the scope of our career events to include CULS insight days at firms, barrister events spanning immigration and asylum law and trailblazing female barristers Not to mention our Meet-the-Committee Welcome event, the first of its kind, and our weekly welfare drop-ins!

We are excited to showcase what we have planned for Lent term in a couple week’s time. In the meantime, we hope that our Per Incuriam Michaelmas edition sufficiently keeps you company in this winter break, and leaves you excited to do more with CULS next term.

Have a wonderful winter break, and see you in Lent!

Editors’ Welcome

Dear Readers,

Congratulations for completing the first term of the 2024-25 academic year, with all the rigours and rewards that studying at Cambridge brings In this edition of Per Incuriam, you will, as usual, find a selection of essays which have scored top grades in actual Tripos exams, encompassing modules across all three years of undergraduate study The theme of this term’s issue broadly reflects the lasting impact of colonialism This year, the UK handed over the sovereignty of the Chagos Islands to Mauritius. In line with this historic geopolitical development, an article submission by Rishik Vishwanathan explores the lasting impact of colonialism on legal systems, through the lens of India Another article by Tiffany Tivasuradej compares former colony Hong Kong and the UK through the lens of developing corporate workplace policies to support caregiving employees We hope you find these articles just as interesting as the Editorial Team did in reviewing them.

Fromleft: Chloe Levieux

Ewan O’Mahony

Alpha Ngai PerIncuriam Subcommittee 2024-2025

I would like to also extend thanks to our article contributors, Rishik Vishwanathan and Tiffany Tivasuradej, and our essay contributors, Brendan Mark, Joyce Mau, Zofia Halbersztat, Ben Mays, Hannah Reinisch, Qinglan Du, Natalie Seah, and Maryam Mahmood Finally, I would like to thank the Executive Committee, especially the Publicity Team who completed the creative design of this edition, for supporting throughout Following an impressive round of applications, I also extend a warm welcome to our new Freshers’ Representatives, Nathanael Tung and Owen Warrington – congratulations, and we are looking forward to welcoming you to the Per Inc team.

If you would like to contribute to Per Incuriam, please email us at per-inc@culsorguk In addition to having your work published, we also reward our essay contributors with a monetary award We accept pieces on a wide range of legal topics, so please feel free to pitch your ideas to us and keep an eye out for contributor applications opening for the Lent Term edition.

I would like to thank Alpha and Chloe, Per Incuriam’s deputy editors, for their dedicated efforts over the course of this term to help to bring this issue to fruition

Page 02

Ewan O’Mahony

PerIncuriamEditor-in-Chief 2024-2025

Table of Contents

01.

President’s Foreword

Joyce Mau

18. Criminal Law PQ

22. 02.

Editors’ Welcome

The Per Incuriam Subcommittee

05.

The lasting impact of British colonialism on legal systems, through the lens of India

Rishik Vishwanathan

11. Developing Corporate Workplace Policies to Support Caregiving Employees in Response to the Ageing Population...

Tiffany Tivasuradej

Ben Mays

26. Civil Law II Essay

Human Rights Essay

Hannah Reinisch

30.

Brendan Mark Contract PQ

Joyce Mau

34.

CSPS Essay

Qinglan Du

Table of Contents

38.

Labour Law Essay

Natalie Seah

Civil Law I Essay

Zofia Halbersztat

42. 46.

International Law

Maryam Mahmood

The

lasting impact of British colonialism on legal systems, through the lens of India

One of the many claims of the British Empire is that it spread the British legal system’s principles of equality and fairness across the world by the common law Today, one third of the world’s population lives in a common law jurisdiction For former colonial nations, there is undoubtedly an uneasy balance to strike between customary law, rooted in their respective cultural identities, and the legal principles and practices that came about during colonialism, often entrenched in their present codified constitutions Focussing on one former colony, this article will explore how lasting the impact of colonialism has been on the Indian legal system. This article will explain which British constitutional principles and legal practices have remained relevant, which have been found to be obsolete and thus discarded, and which unwanted practices still linger

Rishik Vishwanathan

(I) General constitutional features

A whole host of constitutional principles and procedures entrenched in the Indian constitution remain from the British Raj. The broadest of these is of course the common law system itself It could be argued that remaining a common law jurisdiction was merely a matter of convenience for the drafters of the Indian Constitution upon independence, but that would neglect the vital role the common law played in preserving customary law, particularly in relation to different religions. A significant aspect of the retention of underlying British principles in Indian law is the manner in which it was incorporated in the colonial era Ideas about the rule of law and equity were assimilated into existing custom to create a hybrid system. In the British

spirit of protecting the rights of subjects, huge volumes of customary law were codified in line with ideas of free trials. But the British were aware of the limits of this codification- by introducing the common law, the Raj could enforce a single legal system onto a geographical area consisting of several hundred jurisdictions, whilst allowing judges to decide on more difficult issues of custom that the colonisers could not attempt to fully comprehend.

Authors like Amarthya Sengupta argue the constitution of India is inherently ‘colonial’ due to the retention of the centralisation of the law that occurred under the Raj Local self-government as had existed under the Mughals and various Rajput princes had been significantly diminished Provisions in the constitution provide broad emergency powers to the executive, a hangover from the imperialist attitudes of the Raj These powers were expertly manipulated in a shocking fashion by Indira Gandhi in 1975. Independent India adopted British ideas of rationalisation of the law, which achieved a unified judiciary and granted the state a unique power to implement the law Codification of the law by statute was uncommon before the Raj and became a major source of law in independent India As the British noticed on their arrival in the subcontinent, Hindu customary law is far more flexible than its more rigid European counterparts, and

‘Mohammedan’ law had no concept of statute either The British deemed this to be an example of the locals’ inferior systems, and thus attempted to rationalise and codify customary law in an arguably vulgar fashion The caste system and its related procedures were grossly oversimplified, and the role of village and regional custom was gradually overlooked, as it perhaps remains today There are undoubtedly incentives for this to remain the case for post-colonial Indian government- it would be most likely impossible for a modern state to function with any efficacy without a broadly centralised legal system Then again, Sengupta would argue this is simply part of an inherited colonial mindset.

Distinct constitutional features of the British constitution are present in most of its former colonies, including India. One of these is a partial conception of the separation of powers A copy of the British system, nominal power lies with the Head of State whilst the executive and legislature have significant overlap In the case of In Re Delhi Laws Act (1951), the Supreme Court held that a strict conception of the separation of powers could not be inferred from or protected by the constitution, whilst still promoting the idea that branches of government have different roles This was reasserted by Ray CJ in Indira Nehru Gandhi v Raj Narain (1975), where a rigid separation of powers was rejected. This remains useful to India for a range of reasons- one of which is, as in the UK, the need for quasi-legislative and quasi-judicial ‘guarantor’ bodies that aid the functioning of everyday government A more unique justification is the need for checks and balances in what can often be a flawed and chaotic democracy There has always been a concern of despotic government in India due to the fate suffered at many points in its modern history by its neighbours and so the ability for certain branches of government to ‘step in’ without legal consequences

would appear expedient This was seen, to some degree, during the period of ‘The Emergency’ Whilst the Supreme Court effectively capitulated to a nearly 2 year period of quasi-dictatorship, lower courts (such as the Allahabad High Court in Raj Narain) continued to assert themselves over the executive, without the legal constraints of a constitutionally protected separation of powers as exists in the USA and Australia

As in other former colonies, distinctly British concepts like parliamentary privilege remain important within Indian constitutional law This is partially because of the struggle of the local legislators to gain some protection from the colonial press and colonial overlords in the interwar period After successfully gaining some degree of parliamentary privilege through the 1935 India Act, it became highly valuable to the first generation of leaders of independent India By the Privileges Committee in the Lok and Rajya Sabha (the two houses of parliament), it remains useful in protecting from an often highly politicised press and an executive usually possessing both money and muscle power

(II) Distinguishing from the British

A central aspect of the Indian constitution that remains distinct is the prevalence of legal pluralism

Whilst the centralising force of colonialism has had a lasting impact on role of the state in law, customary law (as pertains to local culture or religion) is specifically protected in Article 13 of the Constitution Legal pluralism acted in the British interest during the Raj, as it allowed them to enforce a divide and rule policy (for example, by establishing separate electorates for Muslims and for Schedule or “Backward” Castes) which has since been abolished as it is not in the interests of a progressive secular republic seeking to quell such religious tension Legal pluralism was also a cornerstone of the law of the region and the British were simply unable to comprehend it in a detailed enough manner to circumvent it Protection exists for distinctly Hindu, Muslim and Christian custom in Indian law, although the Modi government has often threatened to undo this pluralism in favour of centralising the law

In spite of Sengupta’s complaints, Pal points out that distinctly imperial principles underlying British colonial law have been removed- for example the Sedition Act which was manipulated by Indira Gandhi in the Emergency and was a marked reminder of a time of often entirely arbitrary executive power British misunderstandings of certain cultures led to problematic outcomes which post-independence India has slowly had to reverse There has been little change in the oversimplification of the caste system, but aspects of the Indian Penal Code in criminal law have been gradually repealed One such example is the Criminal Tribes Act, which was a response to the ‘Thugs’ or Indian highwaymen that effectively criminalised entire sections of the population based on their tribe or village and kept the men under almost lifetime surveillance. Such statutes had force in early post-independent India, but the stain of colonial generalisation and extensive executive discretion deemed them obsolete and undesirable Some, although notably not all, of the colonial principles of executive dominance entrenched in statute have been gradually done away with by Parliament and the Supreme Court

Finally, by way of part III of the Indian Constitution, fundamental rights are entrenched in Indian law and cannot be subject to express repeal as both the Bill of Rights 1689 and the Human Rights Act 1998 are in the UK. As a newly formed modern nation compiled of numerous states (many of whom had been simply independent vassal principalities under the British), independent India needed written documentation to establish how exactly the new government would function after such a monumental constitutional change In line with most other written constitutions and inherently hierarchical systems, fundamental rights are enshrined and laws cannot be made contrary to them (as was the case in Raj Darain). There is a growing tendency among academics in Britain, such as Trevor Allan, to hope for the UK courts to hold principles of democracy and freedom in similar light. However, whilst this is yet to be the case, it remains a significant difference between Britain and most of its former colonies (III)

Indigenous rights

One contentious issue where it is unclear which direction the government is headed in, is that of India’s tribal and indigenous communities. Unable to clearly understand or control many remote tribes, the British took a dual approach of direct force and control but also leaving these tribes to manage their own day-to-day affairs, so incomprehensible to their colonial masters This attitude can be seen to some degree in the existence of the Fifth and Sixth Schedules of the Constitution Whilst providing protection for the customary law of these peoples, there remains the air of colonial suspicion in the direct state Governor’s rule over these areas and the relative lack of autonomy and democracy for the local people. The government of India’s struggle to balance a desire for uniformity and centralisation with the need for autonomy and respect for indigenous people can be seen playing out across India, most violently so in the north-eastern state of Manipur in recent years

...ahybridsystembetweenlocal customarylawandinfluences,and Britishcommonlawprinciples...

Conclusion

The Indian legal system is effectively a hybrid system between local customary law and influences, and British common law principles. It is clear how these principles continue to function in a modern Indian state, through partial separation of powers, the common law, parliamentary privilege, and a more centralised system than the Indian subcontinent has ever traditionally had. Nevertheless, colonial attitudes reflected in statute and excessive executive power has been done away with to accommodate India’s status as a democratic republic. Problems remain for the government to resolve with regards to indigenous rights.

Developing Corporate Workplace Policies to Support Caregiving Employees in Response to the Ageing Population: A Cross-Cultural Comparison between the UK and Hong Kong

Tiffany Tivasuradej

Introduction

In an era marked by a globally ageing population, more employees than ever before are facing the challenges of juggling elderly care duties and full-time work. Within the UK alone, this affects over 5 million working family carers daily (Donnelly, 2024). At the same time, corporate organisations are also witnessing the side effects of elderly caregiving demands on their workforce, particularly in terms of employee productivity and the likelihood of retention This pressure is felt most strongly by organisations operating in Hong Kong which is predicted by the United Nations to have the oldest population in the world by 2050, where elderly individuals of 65 years old and over will make up 406% of the entire population (Woo, 2023) A similar pressure is also expected in the UK where the elderly population is projected to increase to 1 in every 4 individuals within the same timeframe (Thompson, 2015)

As there are high costs associated with replacing employees that resign to become full-time carers, certain organisations have started exploring different ways to provide support to enable carers to balance care and work. One approach is to improve workplace policies What types of policies have corporate organisations adopted or developed? In what ways are they similar across markets? This article provides an overview of key governmental and corporate policies focused on supporting carers. Examples are drawn from Hong Kong and the UK, given the relevancy and urgency of elderly care to both markets, to illustrate, where relevant, the unique cultural conditions that corporate organisations operating on a global scale have taken into

Governmental policies

Working family carers are protected under several pieces of employment legislation in both markets (Ius Laboris, 2023) On the basic level, the Employment Rights Act 1996 in the UK and the Employment Ordinance in Hong Kong share similarities in protecting carers against unfair dismissal, right to have proper working conditions, and regulating working hours in the same manner that non-caregiving employees are likewise offered There are some minor differences in leave entitlement, where the UK offers a minimum of 28 days of paid annual leave while Hong Kong entitles employees to seven paid days with increments based on the number of years of service to the organisation (ACAS, 2024; Links International, 2024) Additionally, anyone in the UK that is legally classed as an employee can also request for leave to help a dependent with an emergency, which can include elderly dependents, under the Employment Rights Act 1996

Aside from general employment rights, the UK Government has also taken the initiative to develop new policies supporting caregivers specifically. The Carer’s Leave Act is an example of this This was launched in April 2024 and offers caregivers the right to request for up to seven days of unpaid leave to handle care-related duties (Department for Work and Pensions, 2024)

Additionally, changes to the Employment Relations (Flexible Working) Bill that came into effect during the same month of April also benefit carers by giving them the flexibility to work from home This allows carers to avoid long commutes and more effectively manage the unpredictable demands of elderly care that can often interrupt the standard 9 till 5 office working hours Moreover, the nationwide charity Carers UK (2024) proposed a new manifesto in June 2024 striving for long-term policy changes to benefit all carers. Key highlights of the manifesto include raising the Carer’s Allowance offered by £1110 a week at the very minimum, introducing up to two weeks of paid Carer’s Leave and up to six months per annum, providing tailored support to benefit the health and well-being of carers through new NHS legislation, and amending the Equality Act to recognise carers as a protected characteristic (ibid)

Presently, Hong Kong does not have any policies that are specifically designed for carers. The Employment Ordinance does include parental leave for child care, but this does not extend to individuals taking care of elderly relatives (Labour Department, 2024). A possible reason for this could be because caregiving duties are often shared by foreign domestic helpers (FDHs) from Southeast Asian countries that approximately 1 in 3 households in Hong Kong typically hire (Ho et al, 2018)

Once you have your overall theme, you can start brainstorming the content Just starting? Design a memorable masthead with an equally memorable name

This goes on the cover and sets up the branding for your entire magazine What style are you going for? Is it playful? Classic? Bold? A good masthead captures the essence of your magazine, so it needs to be flexible, meaningful, and consistent enough for future issues

In fact, a more recent survey estimated that 132% of households specifically hired a FDH to take care of an elderly relative at home (London School of Economics, 2022) Although this can help to lessen the weight of caregiving, this does not mean that families in Hong Kong are entire inactive in the elderly caregiving process Many carers still feel a moral need to fulfil their duty of care owing to the cultural value of filial piety, which places social expectations on adult children to take care of their parents and grandparents as a form of respect that ultimately influences the individual’s own identity in society (Holroyd, 2001) However, owing to the rapidly ageing population and high stress work environment that Hong Kong is renowned for globally, the Government (2023) has begun to recognise the need to amend legislation to better support carers and in particular those providing elderly care Furthermore, a more recent report on carers by the Equal Opportunities Commission has reinforced the urgency of developing a ‘caregiver-friendly work environment’ to the Labour Department. Of all the recommendations provided by the report, the most critical was to consolidate a detailed set of guidelines to help employers design relevant flexible work policies and train managers to effectively handle common challenges caregivers face in balancing work and care (Lai, 2023)

Corporate policies and interventions

Carer-friendly guidelines for corporates have been developed in the recent years by various nongovernmental organisations in both markets In the UK, the Chartered Institute of Personnel and Development (2024) offers a list of recommended areas to their member companies in a specially designed guidelines booklet Key recommendations include considerations that should be taken to create a thriving workplace culture and key sources of information carers should be told about by their employer regarding benefits claims. In Hong Kong, a similar resource was launched in June 2024 by a charity called the City Mental Health Alliance (2024) This Caring for Carers toolkit provides recommendations on ways to support the well-being of carers at work in addition to suggested policies and was based on the version created by the Mind Forward Alliance in the UK which the Hong Kong charity was modelled after

Both markets have witnessed a variety of corporate organisations, mostly from financial services, initiating their own carer-specific policies and internal interventions. Several multinational organisations even coordinate joint initiatives that are available for carers in Hong Kong and the UK HSBC is a notable example, where the importance of supporting carers is part of the Bank’s global inclusion and diversity policy. Key achievements include forming dedicated employee resource groups to run small coffee chat sessions for carers, establishing a detailed carer’s charter for the Bank in the UK which has benefited conversations between carers and their managers, and collaborating with local charities such as Carers UK and St. James’ Settlement in Hong Kong to host informative seminars and lunchtime events (Employers for Carers, 2023a, 2023b; The Hongkong Bank Foundation, 2023)

Another relevant example is Macquarie Group (2024), which has invested largely in providing carers across multiple markets with annual paid carers leave benefits and up to 12 days of transition leave upon returning to work after fulfilling caregiving duties. Furthermore, aside from directly helping carers to balance work and care, corporate organisations are beginning to invest in partnerships with professional care service vendors and start-ups. These providers offer a range of services to help carers navigate the caregiving journey, from finding elderly care homes to providing a back-up carer or nanny for any caregiving emergencies Seniorcare by Lottie (2024) in the UK and Agewhale (2024) in Hong Kong are examples of such providers.

Moving forward

With the continued growth of the ageing population, we can certainly expect to see many more policies and interventions dedicated to supporting carers of the elderly gradually emerging in Hong Kong and the UK. Opportunities for new developments lie at the governmental level and also internally within corporate organisations, particularly joint initiatives across markets. While financial services are currently driving the carer-friendly workplace agenda forward, it would be interesting to see if and when similar initiatives and policies appear in other industries Can these changes sufficiently help corporate organisations to futureproof their workforce from the longterm side effects of elderly care, especially as we edge closer to 2050? Only time will tell.

TRIPOS ESSAY SELECTION GUIDLINES

We consider the following relevant factors when selecting which submissions to publish. It is important to note, however, that this is not an exhaustive list of all relevant considerations. We encourage readers to reach out to the Per Incuriam team if they have any questions or suggestionsregardingourpolicy:

(1) The mark achieved on essay being submitted

We aim to publish the highest quality work to help current and future students prepare for their exams.

(2) Whether the student has had an exam essay published in the past

We aim to ensure diversity of contributors, offer a wider range of styles and illustrate the different ways in which a first-class mark can be achieved

(3) The year in which the student sat the exam

We aim to publish recent work to ensure that the law discussed and cited remains current and does not confuse students

(4) Whether we have recently and/or frequently published exam scripts in the paper in which the mark was achieved

We aim to publish sample answers in a wide range of papers to help current and future students in as many different papers as possible to prepare for their exams Although we are particularly keen on publishing essays from less popular papers, our ability to do so is dependent on receiving essay submissions for those papers o Maestro agrees to these terms

(5) The type of question (essay question or problem question)

We aim to publish sample answers dealing with a wide range of question-types within each paper to ensure that current and future students may better familiarise themselves with the range of questions that might arise in the exam

Brendan Mark

Mark: 74

criminal law

Annie, a young mother, has been suffering from depression since her partner Callum left her. One day, Annie is walking to the local playground with her 3-year-old son, Robbie. Suddenly overcome by the thought that there is no future for her or Robbie and that it would be better for both of them to die instantly, she steps into the path of a deliveryvehicle, pulling Robbie with her. The delivery vehicle runs over both of them. Robbie dies, Annie survives uninjured. The vehicle driver could have done nothing to prevent the collision.

At Robbie’s funeral, Callum tries to drown his sorrows in a very large amount of alcohol. In an extremely intoxicated state, he pushes Annie into Robbie’s open grave, shouting ‘You should be dead, not him!’

Annie falls into the open grave. She breaks her collarbone and her leg, but survives.

What offences, if any, have been committed?

By stepping into the vehicle’s path with Robbie (R) causing him to die, Annie (A) may have committed murder

The actus reus of murder is causing death. Her stepping out and pulling R is what brought them into the path of the delivery vehicle But-for causation is established here (White) and legal causation is too as A’s stepping out made a non-negligible contribution to R’s death. No novus actus is present as the vehicle driver “could have done nothing to prevent the collision” thus his act was not free, deliberate or informed, and it was reasonably foreseeable that he would have run over the two people

in close proximity to his vehicle who suddenly flashed out Thus the actus reus of murder is made out

The mens rea of murder is an intention to kill or cause grievous bodily harm (GBH) (Cunningham (Anthony)) By Lord Bridge’s golden rule in Moloney, direct intention is straightforwardly made out, seeing as A clearly thought it would have been “better for both of them to die instantly” Thus it was her aim and motive to effect R’s death that very moment she stepped out and by the move of stepping out. The mens rea of murder is fulfilled

Partial Defence of Diminished Responsibility

However, A may have the partial defence of diminished responsibility under s2(1) Homicide Act 1957 Firstly, this requires A to have an abnormality of mental functioning that arises from a recognised medical condition (s2(1)(a)) The depression is such a psychiatric condition and it has caused a state of mind “ so different from that of ordinary human beings that the reasonable man would term it abnormal” (Lord Parker CJ) – seen not only in her depressive state but her being overcome by an overwhelming and impending feeling of hopelessness in life.

Secondly, the abnormality must substantially impair A’s ability to do at least one of the things in s2(1A) It does not affect her ability to understand the nature of her conduct as she clearly comprehends

that stepping out onto an incoming vehicle’s path is likely to result in dying “instantly” Nor does it affect her ability to form rational judgment as she was able to make the logical link between physically stepping out and inflicting the outcome of death from the accident, analogous to the autistic defendant’s ability to connect strangulation and lack of resistance to have sex in Conroy

However the abnormality may affect A’s ability to exercise self-control (s2(1A)(c)) as she is shown to have been unable to resist the thought that she was “suddenly overcome ” by Certainly an ordinary capacity for self-control would dictate that she would be able to resist acting instantly on that impulse. But it is crucial that the abnormality affects the self-control, meaning that A’s depression must have substantially eroded her ability to resist acting on impulsive thoughts like these. It is not shown from the facts, but may be an inference the jury has to make on factual and expert evidence of whether A was unable to exercise self-control in the past because of her depression Nevertheless it is a plausible conclusion as the emotional and mental exhaustion and instability that depression causes does tend to directly impact one ’ s ability to act in a restrained way, and this impact may be exacerbated by the stress of her plight as a “ young mother” raising a child on her own increasing her tendency to be emotionally and mentally unrestrained. Thus I will take causative link from the depression to the impairment to be there in the absence of further information

Lastly this must provide an

for the fact that she was unable to resist the thought that both of them would live a hopeless and desolate life.

Thus A’s charge of murder of R is likely reduced to a charge of voluntary manslaughter (s2(3)) by diminished responsibility, subject to the jury’s findings that the depression substantially impaired her self-control

Callum (C)’s s18 liability for pushing A

By pushing A into the grave, C may have committed an s18 offence The actus reus of s18 is maliciously wounding or causing grievous bodily harm (GBH) unlawfully The combined injury of A’s collarbone and leg would have been sufficient to constitute causing (Ireland and Burstow) “really serious” harm (DPP v Smith) due to the disfigurement that a broken collarbone would cause to A’s chest and figure, and the impairment of A’s ability to walk for a long time with her broken leg. The court considers the totality of injuries, and A’s age, physical and mental health, to assess the severity of the impact on A (Bollom) Given especially her vulnerable mental state as a depressed (ex-)young mother likely now also grieving the loss of her child, and given the combined effect of two broken bones in significant places of her body, it is likely to be GBH But-for and legal causation are made out by C

The mens rea of s18 is intent to cause GBH or intent to resist lawful apprehension Here it is the former that is likely.

It is questionable whether direct intent is made out: although C’s words “You should be dead” could be interpreted to mean his wish and threat for her to be dead and him acting in a corresponding manner to inflict serious injuries on her that could kill her, the fact that C also said “not him” means that it is less likely a threat but an expression of the unfairness of the situation, that his innocent son had died because of A’s malice when it is A who should have justly suffered the consequences of her own intentions in the accident Thus it cannot be definitively said that C acted with the aim of inflicting GBH, and it is possible that he acted on frustration, being reckless to GBH instead

Oblique intent is not made out either, as it is not virtually certain that GBH would be suffered by pushing someone into an open grave There is certainly room for possibility that impact could be cushioned by the soft soil that has been loosened up or by R’s (likely softly-wrapped) body, not to be crude The depth of the grave is also unlikely to be very deep as R is an infant after all, and the mourners need to see the body Thus it is not certain that the fall will certainly result in GBH, and it is not said that C appreciated this either.

Thus C is likely not guilty of s18

However, C may instead be guilty of an s20 offence The actus reus of s20 is wounding, or, inflicting grievous bodily harm (GBH) unlawfully GBH is made out as above.

The mens rea of s20 is an intention or subjective recklessness, both towards causing “ some physical harm to some person, albeit of a minor character” (Savage and Parmenter)

It is difficult for intention to be made out due to the ambiguity of C’s words that could either express a veiled threat he is acting on, or his grief at the injustice of the situation This is complicated further by his “extremely intoxicated” state that may heighten his emotions and make him more expressive of his grief, making it more possible that the statement could be a plaintive lamentation of his sorrow The seeming connection between the “ grave ” and “dead” that C seems to make in his drunken state could betray a comically simple association that leads him to put A in the place where he thinks she ought to be –the grave This may have been the most he intended to do, and he likely would not have intended the harm resulting from it

Recklessness might possibly be made out. C acts recklessly if he is aware of a risk that a result will occur, and takes the risk despite it being unreasonable in the circumstances to do so (G and Another) But it cannot be said, with the analysis of the grave earlier, whether C has

apprehended the risk of physical harm However if it was C’s aim to displace A into the grave he must have done so with enough force to unbalance her and cause her to fall headlong inside It is likely that a person who does this will have appreciated the risk that someone could suffer injury from force being applied to them like that An interpretation of his words as retributive (he was certainly very angry at A) could also add weight to the conclusion that he would have been indifferent to the risk of whether A is injured or not, as his words show he does not care for her well-being or indeed whether she is even alive or not Thus recklessness is likely made out

C’s intoxication

Given however the discussion over C’s mens rea that could plausibly be doubted, we must consider the impact of C’s “extreme intoxication” to his s20 liability There is reasonable doubt over whether C formed the requisite mens rea C intended to imbibe himself with the alcohol. Yet the s20 offence is one of basic intent and C cannot rely on his intoxication to raise a lack of mens rea

C’s attempted murder

Briefly, C is likely not guilty of attempted murder The mens rea of an attempt is the intent to commit the substantive offence (s1(1) Criminal Attempts Act (CAA) 1981), and it cannot be proven as above that C intended A to die from his words or acts

civil law II

Comment upon both of the following texts:

(i) ‘If my slave is riding a horse and by frightening the horse you cause him [the slave] to be thrown into a river, and the slave dies from this, Ofilius writes that an actio in factum must be given; in the same way as if my slave is led into an ambush by one person and killed by another.’ (D.9.2.9.3, ULPIAN)

(ii) ‘If someone knocks coins from my hand, Sabinus believes there is an action for wrongful loss provided that they are lost and do not come to another person, as where they fall into a river or the sea or a drain; but if they come to another person there will be an action for aiding and abetting theft, and the ancient jurists also believed this. He says that an actio in factum can also be given.’ (D.9.2.27.1, ULPIAN)

Ben Mays, Mark: 74

This text comes in an Ulpian run at D9.2.9, in which he appears to delineate direct liability under the lex Aquilia from those cases in which only an actio in factum may be awarded. At 9.1, there is a direct action where poison is directly administered “by force or persuasion,” as distinct from a case where the poisoned person selfadministers (9.pr), and at 9.2 there is only an actio in factum for one who starves another to death. Thus, Ulpian is trying to spell out how far direct liability will stretch, and what must be excluded because it falls outside the category of ‘occidere’

It seems that, at least for Ofilius, a late-Republican jurist, causing a horse to throw its rider into a river, where he dies, is not ‘occidere,’ since only a decretal action is given. Light is shed by the basis on which it is sought to be justified

(i) D9.2.9.3

It is not clear from the text whether the second sentence is of the same Republican pedigree, or is Ulpianic, but based on the construction it appears that liability in the horserearing case is considered as an extension of liability for leading a slave into ambush. As Watson has written, the only apparent factual similarity here is the intervention of some third party, who actually performs the killing act In the latter case, this is straightforward: the ambushing slave does the killing This reading requires us to say, however, that in the former case, the horse is acting as the third party and doing the actual killing. While this is arguably factually accurate (it is the horse’s action that leads most directly to the death), it nonetheless seems an oddity As we can establish from the jurists’ treatment of the actio de pauperies, they had a fairly sophisticated understanding of the concept that animals could not be legally culpable (D9113, Ulpian)

Thus, asserting that this must be a complicity-type scenario (as the ambush), where the principal is the horse, does not bear the weight it must take We are left to search further for an explanation of the relationship between the two clauses.

he orthodoxy on the development of ‘occidere’ as propounded by Watson, holds that, before decretal actions became widespread, the Republicans took a broader meaning of ‘occidere’ than became conventional in the early Empire. As a late Republican, with actiones in factum beginning to develop

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(as shown by his grant of one here), Ofilius might be at the cutting edge on this point, and beginning to trim down the circumstances that come within ‘occidere.’ Thus, it is suggested, he was determined to exclude the horse-rearing case as insufficiently direct, as it certainly would have been in the classical law, since even loosing a dog on somebody is not ‘occidere’ where you are not holding it (D92115, Ulpian). Ofilius thus cast about him for a justification as to why the rearing horse was not a direct action, and lighted upon another example, where the defendant was clearly highly culpable, but the damage inflicted was insufficiently direct It is possible that he did perceive, and rely upon, the third-partyintervention analogy, but given the tenuous nature of that parallel, it seems unlikely Ultimately, then D9.2.9.3 is a paradigm case of an actio in factum being given for indirectly-inflicted death.

(ii) D9.2.27.21

There are two primary issues raised by this text. First, liability under the lex Aquilia where there has been no damage Second, the boundary between furtum and Aquilian liability in late Republican law

The text is situated at D9.2.27.21 (not 271), in a run of texts generally agreed to be part of a commentary on ‘ruperit,’ as set out in the formula of chapter three at D9.2.27.5. At 27.19, an action is given for corn poured into a river At 2720, an action is given for mixing up corn with sand, and then the present text gives an

action for knocking coins into the river

No damage: Aquilian liability

The first difficult is in determining what action Sabinus is said to be awarding As Spagnolo has argued, the presence of ‘actio in factum’ in the final sentence of the text, means it is highly likely to have been only a decretal action on the lex Aquilia. This impression is furthered by the text at D19.5.23, where Alfenus cites Servius as giving an actio in factum for a ring dropped in the Tiber This seems to be a fairly early instance of an actio in factum being awarded in a case in which there was no damage, as later picked up by Ulpian, citing Pomponius as giving an actio in factum for tossing a silver cup into the sea (D195142)

The present case can be easily distinguished from D9.2.27.19, in which corn was thrown into the river, and a direct action apparently awarded. This is because the corn has been changed (‘spoilt’/‘corruperit’) by its contact with the water while the coins have not It seems likely, as MacCormack has argued that, for Celsus at least, and possibly more broadly some physical change to the thing remained needed for a direct action. Alternatively, as Watson has suggested, it is possible that ‘action on the lex Aquilia’ included the decretal action in some circumstances, and so 2719 can be reconciled with 27.21 as the same action was in fact given: an actio in factum in both cases

Aquilia/furtum boundary

In Sabinus’s text, furtum is given a broad meaning. The man who knocks the coins out the hand appears to be liable for furtum despite having no theftuous intent, and no actual collusion with the person who takes the coins. The chronology is important here The orthodox view, as set out by Ibbetson, is that, in the early law, some asportation was needed, before this was attenuated to simply ‘contrectatio’ by the end of the Republic (Sabinus’s timeframe), and then restricted by the requirement of animus furandi around the middle of the second century.

Although the wrongdoer here, has arguably contrected the coins, by knocking them out of the hands, he does not appear to be liable as a principal, but rather as an accomplice: ope consilio. Further, there has arguably been an ‘asportation’ although this is carried out by the river, rather than the person However, liability ope consilio seems incongruous, since there is no actual conspiracy between the wrongdoer and the third party. We are thus dealing with a fiction of imputed complicity Analogous facts, also from the late Republic, are to be found at D47.2.52.22, where Ulpian cites Mela as giving an action against somebody who lent weights to a purchaser, with the intention of defrauding the seller Despite the lack of theftuous intent (as in D922721), and further despite the lack of actual conspiracy (again, as here), the lender is liable for furtum

(though whether as a principal or accomplice is unclear). In both cases, there seems to be an application of Scott’s argument on the point that, as required by Ulpian at D47.2.52.19, “words or writing” will not suffice, but there must also be contrectatio. As Scott has argued, it appears that this contrectatio can be provided by one in an accessorial role, which is important in 2721, since it is far from clear that the knocker of the coins has actually touched them, which at least on Watson’s view, might act as a bar to establishing contrectatio It will be sufficient for the third party to handle them. Sabinus’s reliance on the ‘veteres’ to lend additional authority to his point further suggests that he is adopting a broad reading of ‘furtum’ as was common in the late Republic

This is a text of its time, though. By the classical period, the need to impute complicity seems to have died out, and the texts which deal most closely with the issue: Pomponius’s peacock (D47.2.37), and Ulpian’s persuader of a slave to run away (D47236pr) both seem to require actual complicity in order to found liability for furtum.

human rights

Hannah Reinisch

Mark: 75

‘The distinction between so-called “absolute” and “qualified” ECHR rights serves no useful purpose. Ultimately, both involve balancing competing interests: with absolute rights this occurs within the scope of the right, whereas with qualified rights it occurs at the justification stage.’ Discuss.

It has been disputed whether there is truly a distinction between socalled absolute and qualified ECHR rights, and whether such a distinction has analytical significance This essay will argue that the distinction between absolute and qualified ECHR rights serves a useful purpose even if they both involved balancing competing interests at different stages

Moreover, it posits that absolute and qualified rights do not balance competing interests in the same way – whilst qualified rights explicitly balance different convention rights

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and policy objectives of the Contracting Parties, on a proper construction, absolute rights do not involve such balancing and any balancing is merely for the purpose of ascertaining whether the act is justiciable by the ECHR As such, this article will examine 1) the useful purpose of the distinction given the ECHR’s historical context, 2) the nature of balancing tasks for qualified and absolute rights and the desirability of this.

Distinction between absolute and qualified rights

The quote suggests that absolute and qualified rights might be different in name, but ultimately boil down to similar analytical processes which can and do thus also involve limitations on absolute rights. Whilst this is incorrect, absolute rights and this distinction rightly serves a useful purpose regardless of whether that quote was true The absolute rights in the ECHR, namely article 3 (prohibition of torture and inhuman

or degrading treatment) and article 4(1) (prohibition of slavery and servitude), serve a distinct feature given the historical context of the ECHR Arising in the aftermath of World War 2 and the Holocaust, as Letras astutely demonstrates, the ECHR had a specific (moral) purpose of preventing state-inflicted totalitarianism Whilst the Convention can generally be seen as achieving this aim by bolstering civil society and individual’s rights vis-àvis the state, article 3 and 4(1) serve a specific purpose in this regard as torture/ill-treatment and slavery/servitude were two specific aspects which are strongly associated with the Holocaust and which were particularly strongly condemned internationally. As such, assigning these rights a special status as “absolute rights” is important in honouring the roots of the ECHR and embodying the ethos of “Never again”. Even assuming that it serves no other purpose analytically, nonetheless the distinction or rather special focus on articles 3 and 4(1) carries crucial symbolic weight.

Qualified and absolute rights: balancing competing interests?

Qualified rights (articles 8-11) straightforwardly involve balancing competing interests in the justificatory stage via the legitimate aim category and the proportionality test Whilst the exact interests that can be considered as legitimate aims might vary between the rights (cf art 8 vs art 9), with some rights having fewer legitimate aims, this involves open deference by the

ECHR to the priorities and objectives that the State prescribes For example, article 8’s legitimate aims include national security and public morals (Art 8(2)), and the proportionality test often involves considerations of state policy (eg towards immigration). These legitimate aims can generally be easily satisfied by the state (de Londras and Dzehtsiarou), as demonstrated by the application of the living together principle as fitting into the supposedly limited legitimate aim categories in the controversial case of SAS v France. Qualified rights’ application also involves the balancing of different competing rights, each protected by the ECHR, such as article 9 and article 10 when debating whether state interference on speech regarding religious views is justified. Thus, qualified rights involve openly balancing competing interests in the form of legitimate aims and the proportionality test. It is desirable that the ECHR provides for this, as the institutional and constitutional competence of the ECHR suggests at least a certain level of deference to state priorities and as these rights overlap in their application.

Absolute rights, at least on the face of it, do not involve such balancing of competing interests. This analysis will focus on article 3 given that caselaw on article 4(1) is very limited No derogations from absolute rights are allowed (unlike qualified rights –cf. Belmarsh), there are no legitimate aims that can reduce their applicability, and their application famously does not depend on the claimant’s behaviour (Gäfgen; Mavronicola). However, nonetheless academics such as Greer have argued that article 3 involves a balancing of two absolute rights in the case of Gäfgen – namely the absolute right of the child that Gäfgen killed and the absolute right of Gäfgen himself. Whilst this standpoint is understandable morally, nonetheless this is misguided as Mavronicola correctly points out – from a legal standpoint, the only right in issue is Gäfgen’s article 3 right.

However, even if such an overt balancing of competing interests does not take place with absolute rights, it has been argued that a relative approach is still taken to aspects of article 3 via the introduction of a minimum threshold of severity (Gäfgen) and the jurisprudence in the extradition context However, on a correct understanding this does not truly involve balancing competing interests, not least in a comparable way to qualified rights, but rather the requisite legal determinations given the “constitutional” limitations of the ECHR Thus, whilst the minimum threshold of severity could

appear to introduce an element of relativity into the analysis, given that not all conduct satisfies this requirement and there are borderline cases (such as Bouyid) –however, the common thread appears to be physical violence of some sort. As Lord Kerr argues in the Northern Ireland Abortion Case, this does not involve proportionality but rather a minimum threshold that constitutes a violation no matter what. This is necessary given that the ECHR is not a criminal court and does not have the authority to intervene wherever it wants – thus, a minimum threshold is a concession to practicality. By thus strengthening the legitimacy of the ECHR, the violations that it does find have more force, too There has also been criticism in the extradition context, with some caselaw purportedly allowing a relative approach. This is visible in the seminal case Soering v UK, where the requirement was “substantial grounds…for believing that real risk” This appears to be a relative requirement, albeit it can better be rationalized as deference to the reality of the situation – if the ECHR wants to operate effectively within its jurisdiction, it needs to focus on this and not purport to expand its reach and impose its norms elsewhere. This can also be seen in the context of life without parole outside ECHR jurisdiction, where after a variety of cases in Sanchez-Sanchez v UK the ECHR appears to have adopted somewhat of a muted approach, whereby assurances from the country suffice Whilst this could arguably involve competing interests,

it is argued that this is in no way comparable to the overt balancing of competing interests that are invoked for qualified rights, as these perceived limitations to the absoluteness of “absolute rights” are practical and pragmatic limitations, rather than true doctrinal ones. Further, as Mavronicola rightly argues, the focus with article 3 and absolute rights is on the wrongfulness of the action, rather than the harm done, and this absolute approach is fundamentally different to that of qualified rights

In conclusion, whilst it might initially appear that the distinction between absolute and qualified rights no longer serves a useful purpose, in fact, this is mistaken. Whilst the distinction clearly serves a useful and crucial symbolic purpose, in substance there is also a distinction. Whilst qualified rights involve the overt balancing of policy aims and other ECHR-protected rights, article 3 is absolute in the sense that proportionality does not play a role. The perceived limitations of the minimum threshold of severity and the extradition caselaw merely show the “constitutional” limitations of the ECHR as a supranational court with a fixed jurisdiction, rather than a balancing act in determining absoluteness.

Joyce Mau

Mark: 76

contract law

Advise Aleida in each of the following scenarios:

i. Aleida visits Barry’s car dealership. Pointing at a brand new Volvo, Aleida says ‘I’ll give you twenty big ones for that Audi’. Barry shakes Aleida’s hand. The next day, Barry delivers the Volvo to Aleida. Barry, who was expecting £20,000, is shocked to receive Aleida’s payment of £2,000. Aleida decides that she does not like the car and wants to return it. Barry refuses and demands another £18,000.

ii. Aleida sends a text to Ciara, her sister and an accountant, which reads ‘if you complete my tax return, I’ll give you £400’. Ciara usually charges £1,000 for this service. Ciara starts work on Aleida’s tax return. After an hour, Ciara has completed about a quarter of the return when she receives another text from Aleida saying ‘actually don’t worry about it. This is so easy I’ll do it myself’. Ciara stops work on Aleida’s tax return. Annoyed, Ciara stays in the office an hour later than usual to make up for the hour she wasted on Aleida’s tax return.

Aleida is the registered proprietor of freehold title to Blackacre, which she wants to sell. Dev is a potential buyer. On 1 January, Aleida and Dev sign a document which states that: ‘For the next month, Aleida and Dev undertake to use their best efforts to agree a price for Blackacre, and Aleida undertakes not to negotiate with any other

potential buyers’. Within a week, negotiations break down after it becomes clear that the parties’ valuations of the land are irreconcilable and there is no chance of them ever agreeing on a price. On 10 January, Aleida accepts Enzo’s offer to buy Blackacre. Dev accuses Aleida of breaching their agreement but Aleida protests: ‘I never negotiated with Enzo; I accepted his first offer’.

Nonetheless, since the main subject matter is the Volvo, the contract for the sale of the Volvo is arguably a term and A made a mistake as to that. Furthermore, B indeed ought to know of the mistake as he is a car dealer, and A had specifically pointed at the Volvo, which B would have known is not an Audi Therefore, A’s unilateral mistake voids the contract and A can return the car and receive the £2,000 she paid.

Price mistake

(i)

B’s car dealership involves a display of his cars, such as his brand-new Volvo, and is an invitation to treat (Pharmaceutical Society of GB v Boots). A’s act of stating “I’ll give you twenty big ones for that Audi” constitutes an offer for the Volvo, however, A commits a unilateral mistake as to the term of the contract given that the car was a Volvo and not an Audi B’s act of shaking A’s hand is acceptance by conduct, but B commits another unilateral mistake as to the terms of the contract, believing that ‘twenty big ones’ meant £20,000 instead of £2,000 which A intended.

Audi mistake

First, A’s mistake will be operative if she commits a mistake as to the terms of the offer and B knew or ought to know of the mistake (Smith v Hughes) Given that A’s mistake is the brand of the car, it is arguable that this was not a term of the contract but rather a mistake of fact that formed the basis of her entering the contract (Statoil ASA v Louis)

Before considering whether the price was B’s mistake as to the terms of the contract, A’s vague description of ‘twenty big ones’ may render the contract so ambiguous as to be impossible to work out the objective intentions of either A and B (Raffles v Wichelhaus) ‘Twenty big ones’ is highly subjective as what is considered a big sum differs largely amongst individuals. Furthermore, the mistake was arguably induced by A given that she failed to specify clearly (Scriven Bros v Hindley). Thus, the contract is void and A can return the car and receive £2,000.

(ii)

Intention to create legal relations

Since A is C’s sister, the arrangement was concluded in a domestic context and presumed that A and C did not intend to create legal relations (Balfour v Balfour). This can be rebutted by clear evidence of objective contrary intention and since C is an accountant, and A offered to pay, arguably the agreement was entered into a Page 31

business context (Snelling v John Snelling) Furthermore, since C has detrimentally relied on the agreement by beginning performance (Parker v Clark), the presumption of the domestic context can be rebutted Jones v Padavatton can be distinguished as the agreement on the facts is certain enough to be binding

Offer and acceptance

A’s text to C stating ‘if you complete my tax return, I’ll give you £400’ constitutes a straightforward offer for a unilateral contract (Carlill v Carbolic Smoke), as A’s text evinces an intention to be immediately bound. Since this is a unilateral offer, the need for communication of acceptance is waived (Carlill) and C accepts the contract by beginning performance (ibid) A’s subsequent text constitutes a revocation of her initial offer, but generally offers cannot be revoked upon the conclusion of the contract (Payne v Cave) Since this is a unilateral contract, Errington applies and A cannot revoke the offer once C has started performing Therefore, A’s revocation constitutes a repudiatory breach of contract However, there is no obligation for C to continue performing, and since she stops doing so, she cannot have an action on the agreed sum (Soulsbury v Soulsbury)

Damages

Since A breached the contract, C may claim for compensatory damages that place her in the same situation as if the contract had been performed and thus if A had paid (Robinson v Harman). This means she can claim for the £400 less the costs she will incur in performance (Classic Maritime Inc v Limbungan) and any other pecuniary losses that arise from having to stay an hour late

(iii)

The clause in the document has two undertakings, first to (i) use best efforts to agree a price for B, and (ii) A undertakes not to negotiate with other potential buyers

First clause: best efforts

Whether this clause is sufficiently certain for enforcement depends on whether it is an agreement to negotiate or obtain performance (Jet2.com v Blackpool). Since it is an agreement to negotiate, it is generally too uncertain to be enforced as there is insufficient context to ascertain ‘best efforts’, save the lack of elaboration in the document (Queensland Electricity) Thus, A is absolved of any liability under this part of the clause.

Second clause: no negotiation

In Watford v Miles, both clauses were analysed together as a goodfaith negotiation clause and a lock-in agreement were too uncertain to be enforced

However, Watford can be distinguished as the agreement on the facts specifies the duration of a month (Pitt v PHH Asset Management) suggesting sufficient certainty for enforcement.

Breach

D argues that there is a breach of contract as A had accepted E’s offer to buy B but A’s protest suggests a strict interpretation of the second half of the clause Since the undertaking is for A not to ‘negotiate’, A’s straightforward acceptance of an offer falls out the realm of the clause.

However, D may argue that upon interpretation of the clause, ‘negotiations’ encapsulates the meaning of accepting offers. There are five broad principles for interpretation (ICS v West Bromwich) and include (i) principle of objectivity, (ii) consideration of the factual matrix, (iii) exclusion of A and D’s previous negotiations and

subjective intentions, (iv) distinguishing between the meaning of words and the meaning on the document and (v) a reluctance to accept linguistic mistakes. Arguably, considering the natural and ordinary meaning of the clause (Arnold v Britton), the word ‘negotiations’ cannot be interpreted broadly to include ‘offers’ as this is against the principle of objectivity and also suggests a linguistic mistake. Nonetheless, D may seek to imply the term that ‘negotiations include accepting offers from others’. Both the business efficacy test and officious bystander test can be used (M&S v BNP). Applying the business efficacy test, the courts will imply the term if without it, the contract lacks commercial or practical coherence (M&S) Given that the contract was a lock-in agreement, for accepting others’ offers to fall out of the scope of the agreement is straightforwardly commercially incoherent. Therefore, D will likely succeed in implying such a term, and A will be liable

Criminology, sentencing and the penal system

Qinglan

Du Mark: 80

What should ‘justice’ for young people in trouble with the law in England and Wales look like? Draw on research evidence to support your answer.

Introduction

Justice for young people should, first, focus on prevention, diversion, and non-custodial alternatives Second, recognise the vulnerability of youths who offend and use reparative justice to rehabilitate them Third, pay particular attention to ethnic minority youths who are overrepresented in the YJS. The current YJS in England and Wales associates youth with risk. With a minimum age of criminal responsibility of 10, which is extremely low compared to other European countries, youth justice should shift from punishing young offenders with harsh sentences,

to acknowledging their vulnerabilities and needs, and addressing the wider issues behind their offending.

Diversion, prevention & non-custodial alternatives

Youth justice should look like prevention, diversion, and noncustodial alternatives The ideal solution is to prevent youth offending If that fails, the YJS should move onto diversion, then non-custodial alternatives This is supported by international standards such as the Beijing Rules 1985 which emphasised that custody is a last resort Starting with prevention, the Youth Justice Board (YJB) defined prevention as “support and intervention with children and their parents/carers who may be displaying behaviours which may indicate underlying needs or vulnerability” (2021) This is divided into a two tier system: early prevention for children with no connection to the CJS, but have demonstrated concerning behaviour, and targeted prevention for children

with prior connection to the CJS, but have not done anything serious enough to warrant a court disposal or OOCD (YJB 2021). The policy behind this is the risk factor prevention paradigm, meaning a focus on early identification of youths who are at risk or pose a risk (Farrington 2000). However, this policy did not translate into action Following the murder of James Bulger by two 10-year-old boys, the UK adopted a punitive populist approach to youth justice Custodial sentences of youth offenders doubled following that offence, despite youth crime decreasing by 16% (Nacro 2005). Instead, youth justice should focus on early prevention, particularly through educational programmes. For example, the US adopted WayOUT, which provides educational programmes to low-risk youth offenders and their parents. It teaches skills such as parenting, communication, and conflict resolution. Barnoski and Aos conducted a metaanalysis on the programme and concluded that it can be effective at reducing reoffending (2004) Hence, early prevention, particularly through education, is what youth justice should look like Next, the YJS should divert young offenders from prosecution wherever appropriate. Lord Bingham argued that diversion is a constructive and pragmatic response, when a formal prosecution is unnecessary (R v Durham Constabulary and another). The conventional notion of diversion is formal pre-court disposal, which still leaves a criminal record. Reid is concerned that formal diversion is used when informal disposals would be more suitable for the young offender (2013) This has a netwidening effect and paradoxically brings young people into the YJS rather than diverts them (Bateman 2002)

Informal diversion is advantageous because young offenders would not have a criminal record, be photographed or have their fingerprints documented (Cushing 2014) This is particularly important for young people because they have their whole lives ahead and criminal records may bar them from many opportunities, preventing them from achieving their fullest potential If diversion is inappropriate, perhaps because the offence is more serious, the YJS should seek non-custodial alternatives and use custody only as a last resort The MoJ conducted a study that examined the effectiveness of various youth sentences in reducing recidivism (2012). They concluded that young people who received lower community sentences had a lower reoffending rate than those who received higher (MoJ 2012). Furthermore, comparing young offenders who were sentenced to 612 months imprisonment and those with the shortest custodial sentences, there was virtually no difference in their reoffending rates (MoJ 2012) This demonstrated the ineffectiveness of custody on young people Therefore, the YJS should prioritise lower-level community sentences wherever appropriate and leave custody as a last resort

Recognising vulnerabilities of young offenders

Young offenders are themselves highly vulnerable, therefore, the YJS needs to recognise those vulnerabilities and cater to their needs. In 2017, the YJB and MoJ found that 61% of individuals entering youth custody were not engaging in education, 45% had substance misuse concerns, and 33% were looked-after children before custody. There were also huge physical and mental health concerns: 31% had concerns relating to suicide or self-harm, 30% related to physicalhealth,33%tomentalhealth,and 32% had learning disabilities (YJB and MoJ 2017) This is the demographic of young people who enter youth custody. Mackenzie, Rogers and Dodds summarised it as vulnerabilities caused by "morally dysfunctional or abusive interpersonal and social relationships and socio-political oppression or injustice” (2014) These statistics demonstrate that young offenders in custody are incredibly vulnerable and victims themselves. The YJS should avoid re-traumatising young offenders and instead help them overcome or cope with their vulnerabilities. If the YJS uses harsh sentences, particularly custody, to address this vulnerable population, it would be using “pragmatic criminalisation” to deal with “manifest welfare needs” (Goldson 2002). This is a wholly inappropriate approach, suggesting that authorities should focus on meeting the welfare needs of these children first This could include providing a temporary stable environment, access to support from therapists, and overall showing the children that they are cared forandsupported

In particular, the institutionalised violence in youth custody suggests that custodial sentences are undesirable for young offenders displaying the aforementioned vulnerabilities. In 2017, HMIP concluded that “there was not a single establishment…in which it was safe to hold children and young people” Youth custody not only fails to recognise those vulnerabilities, but in fact exacerbates them and “locks [them] in a negative cycle of ever greater restriction (HMIP 2018) For instance, bullying and intimidation among young offenders in custody are prevalent, and there is no proper support system for the victims (HMCIP 2019). In 2017-18, around 1/3 of children in custody reported being victimised by staff (HMIP). All these factors suggest that custody can exacerbate the existing vulnerabilities of young offenders and re-traumatise them. Instead, youth justice should address the welfare needs of children and create a supportive environment

Ethnic minority young offenders

Finally, ethnic minorities are overrepresented in the YJS Fewer BAME young people felt staff cared for them compared to their White counterparts (HMIP 2021) Focusing on black children, they accounted for 4% of the general 1017 year-old population in 2021, but comprised 16% of the population entering the YJS, and 28% of the youth custody population This reflects a wider issue in the CJS where ethnic minorities are consciously or subconsciously discriminated against. Therefore, similar goals as for adult offenders would also apply here For example, there could be increased diversity in the YJS.

LABOUR LAW

Natalie Seah Mark: 74

Q12 ‘The Strikes (Minimum Service Levels) Act 2023 is about preventing workers, via their unions, from protesting against poor conditions. The Act breaches the right to strike’ Discuss

The statement suggests that the Strikes (Minimum Service Levels) Act 2023 breaches the ‘right to strike’ by preventing workers from protesting against poor conditions I largely agree with the statement Firstly, this essay will explore the meaning of the ‘right to strike’ in British labour law. While historical European case law has suggested this right may exist (Enerji-Yapi), the view of Kay LJ in Metrobus v Unite that ‘the right to strike has never been much more than a slogan or a legal metaphor’ is emblematic of the meagre and weak existence of this right today Secondly, this essay will focus on the Act as the most recent incursion on the illusory right to strike, building on already onerous restrictions imposed by the Trade Union Act. Finally, it is considered how and whether the right to strike should be revitalised and re-empowered in British labour law in order to better protect workers

Right to strike

The statement’s suggestion that the Act ‘breaches the right to strike’ presupposes that this right exists in the first place. I contend, however, that right to strike is an illusory concept in British labour law. Instead, the UK adopts an immunity structure Prima facie, workers who participate in industrial action are in breach of their employment contract (Simmons v Hoover). Trade unions that call for industrial action are also liable for inducing breach of contract (Lumley v Gye), unless one of the statutory immunities apply

Turning to look at European jurisprudence, Enerji was a landmark case seemingly affirming the right to strike as a fundamental element of Art.11 ECHR, building on Demir which represents the high watermark of jurisprudence in the realm of trade unions, collective bargaining and industrial action Enerji was an important extension of Demir, as without strikes, collective bargaining is essentially collective begging (Ewing and Hendy). This may suggest that the right to strike was once alive and enforceable. As Ewing and Hardy poignantly contend, however, a subliminal Art.11(3) ECHR exists which states that ‘the above provisions do not apply to the UK’ Regardless, even in the European realm, there has since been a retreat from Enerji and Demir in cases RMT v UK and Unite the Union

Ewing and Bogg note that RMT v UK ‘grudgingly acknowledges’ the right as the court ‘gave with one hand and took back with another’ – while recognising that the right to strike is ‘clearly protected’ under Art 11, they also said that strikes were not an ‘essential element’ of Art 11 In the British labour law context, breaches of the purported right to strike began far before the Act, with the TUA introducing, inter alia, numerous procedural requirements significantly tightening the requirements for industrial action While previously only a simple majority regardless of turnout was required to benefit from statutory immunities, the TUA introduced a 50% voter turnout requirement and an additional requirement of 40% of members voting where ‘important public services’ were concerned Had these rules been in place earlier, between 2002 and 2014, only 85 out of 158 ballots would have met the TUA threshold, resulting in over 3 3 million workers being unable to participate in lawful industrial action (Darlington and Dobson). Furthermore, despite the higher threshold requirements, eballoting is not allowed

Informal diversion is advantageous because young offenders would not have a criminal record, be photographed or have their fingerprints documented (Cushing 2014). This is particularly important for young people because they have their whole lives ahead and criminal records may bar them from many opportunities, preventing them from achieving their fullest potential. If diversion is inappropriate, perhaps because the offence is more serious, the YJS should seek non-custodial alternatives and use custody only as a last resort. The MoJ conducted a study that examined the effectiveness of various youth sentences in reducing recidivism (2012). They concluded that young people who received lower community sentences had a lower reoffending rate than those who received higher (MoJ 2012) Furthermore, comparing young offenders who were sentenced to 612 months imprisonment and those with the shortest custodial sentences, there was virtually no difference in their reoffending rates (MoJ 2012) This demonstrated the ineffectiveness of custody on young people. Therefore, the YJS should prioritise lower-level community sentences wherever appropriate and leave custody as a last resort

This appears to be an intentional affront on the accessibility of voting, making it prohibitively more difficult to strike. It is difficult to see why such ‘complex, formalistic and highly technical’ requirements (Creighton) are necessary other than to deter industrial action and render the right to strike ineffectual. Relative to the TUA rules, it is easier to elect an MP (Ford and Novitz) Dukes and Kountouris also poignantly point out that the Brexit referendum would not have been passed had these rules been applied Furthermore, in addition to the requirement to give employers notice of a ballot to approve industrial action (s226 TULRCA), the TUA also doubled the notice period to two weeks (s234A(4)(b)). Not only is the extended notice period more restrictive, but compounded with the ability of employers to hire agency workers to replace striking workers, industrial action is being stripped of meaningful impact

Hence, despite its historical recognition in the European realm, the right to strike has since been rejected in both the European and British realms of labour law. With the introduction of the 2023 Act, the law went one step beyond the TUA, further clamping down on the ‘right to strike’ by essentially prohibiting industrial action entirely in some sectors

As Bogg posits, this is indeed a ‘dangerous direction of travel’

Strikes (Minimum Service Levels) Act

The Act’s aim is to ensure ‘minimum service levels’ in ‘essential services’, which is broadly defined (Newman), including health, transport and education. While this aim appears justified,

as the ILO itself has conceded that in some situations it is necessary to limit the right to strike in essential services, the Act arguably goes far beyond what is necessary and in fact its true aim, as the statement suggests, is to prevent workers from protesting The 2023 Act is undemocratic due to the ‘virtually unlimited’ power conferred onto the Secretary of State to regulate minimum service levels (Katsaroumpas). These unrealistic standards introduced by regulations remove any substance of a strike For example, the Strikes (Minimum Service Levels: Border Security) Regulations 2023 include the requirement that border security is ‘no less effective than they would be if the strike were not taking place on that day’ Requiring that there be a negligible effect of the strike, and in fact requiring that it is essentially unnoticeable that a strike is taking place at all, renders industrial action useless, if not entirely impossible

Katsaroumpas also powerfully notes that the ‘dual unilateralism’ structure in the Act (where only the Minister and employers exercise unfettered power) is in ‘profound contrast with the spirit and letter of ILO standards’ UK case law, such as Metrobus, confirms the misalignment Furthermore, since many of the sectors impacted by the Act are governmentlinked or directly run by the government itself, the ‘dual unilateralism’ structure which is already problematic in itself, may further collapse into ‘single unilateralism’. Furthermore, there is no provision to ensure that the strike is not rendered practically inefficacious Hence, the Act is contrary to ILO Convention 87 (Dukes).

Therefore, the Act builds on the TUA and further encroaches on the ‘right to strike’, leaving workers without recourse to industrial action as a mechanism to improve their working conditions

Reviving the ‘right to strike’?

As Boggs posits, a worrying ‘authoritarian direction of travel’ has been continued through the Act. This direction of travel should be reversed, in the interests of democracy and in order to better comply with international standards

Kahn-Freund and Hepple have described industrial action as an ‘indispensable element of a democratic society’. The right to strike facilitates a sense of ‘equilibrium’ in the inherently unequal employment relationship (Ben-Israel) –the freedom to collectively withhold labour gives power to marginalised workers and mitigates an ‘oligarchic shift’ (O’Neill and White). It is ironic that the TUA was introduced with the rationale of addressing failures in democracy by trade union leaders exercising authoritarian power to get their members to participate in strikes. In reality, the TUA encroaches on the right to strike (Bogg) and in fact is undemocratic Similarly, the 2023 Act undermines democracy and encroaches on the illusory right to strike

Conclusion

The statement rightly suggests that the Act breaches the right to strike, though the elusiveness of this right has meant that this ‘right’ may never have really existed at all in British labour law. Nonetheless, the ‘right to strike’ is a right that British labour law should strive to protect, in the interests of democracy and in accordance with fundamental human rights. The impediments on this right due to the Act and the TUA should be resisted, and the UK is urged to move towards greater alignment with international labour standards

Civil law I

Zofia Halbersztat

Mark: 76

Explain the significance of dolus in the Roman law of delicts.

Dolus “always retained an element of moral disapproval.” (Zimmermann). However, while it was always pejorative in meaning, its significance permeated much of the law of delict in various distinct ways: understood as a praetorian delict, it provided residual protection to deceived individuals; understood as wrongful intent, it helped to delineate the scope of other delicts. However, in this account there seems to be a central tension: if dolus is understood as a requirement for certain delicts, as well as an independent wrong of its own, it’s important to examine the distinction between those delicts, to understand the place and significance of dolus in delict law. Overall, the concept of dolus was central to the law of delict

1: Dolus as wrongful intent

Given the penal character of delictual actions, dolus allowed for the delineation ofthe scope of delicts such as furtum or servi corrupto. Gaius stressed that “theft cannot be committed without dolus malus” While the first requirement to establish theft was contrectatio, the contrectatio itself had to be fraudulosa. It was by examining the defendant’s state of mind, that it was “possible to distinguish between interferences which were theftuous and interferences which were not.” (Birks) In fact, the significance of dolus intent was crucial: it allowed to distinguish between cases of damnum iniuria datum and that of furtum A useful example is one discussed by Ulpian, which shows the way in which dolus helped to distinguish between the two delicts. He writes of a case where coins were knocked out of A’s hands by B, causing them to be lost in the sea.

He agreed with Sabinus that an actio in factum would be given for wrongful loss of property (actio on the lex would not be available because there is technically no res corupta): for Aquilian liability, culpaincluding negligence - sufficed. However, only if there was dolose intention to deprive the owner of his property, would the wrongdoer be liable for theft Gaous elaborates on this example: knocking money out of someone’s hand to enable another to steal it would amount to ope consilio and be redressed with actio furtu. However, if this was done out of lascivia, an actio utilis on the lex Aquilia would be granted. Another example which highlights the central significance of dolus to the delict of furtum is the case of the compassionate release of a slave, which, according to Ulpian, did not amount to theft. Similarly, if one believed that the owner of the thing had consented when this was in fact not the case, no actio furti would be available: “for without dolus malus theft is not committed.” (G.3.197). Similar conclusions can be reached when examining the praetorian delict of servi corrupto: Ulpian cites dolus malus as the requisite intent of the wrongdoer. Dolus allowed to delineate the scope of many individual delicts and thus had large significance in the Roman law of wrongs.

2: Dolus as a praetorian wrong

Further, dolus was a praetorian delict of its own. While originally excpetio doli was introduced for contractual actions by the praetor, it was already recognised as an individual delict in early classical law Citing Labeo, Ulpian defined it as “every kind of cunning, trickery, or contrivance practised in order to cheat, trick, or deceive another”.

Page 43

This definition appears strikingly broad: however, this reflects the residual nature of the delict.

In fact, actio doli could only be brought if no other actio was available. Yet, this should not be taken as diminishing the delict’s significance. Rather, it illustrates the broader function of dolus: while, understood as intent, it allowed to delineate other delicts, understood as a delict of its own, it allowed the law to fill the gaps left by other individual delicts, thus allowing Roman law to develop a more comprehensive system of delicts. Indeed, the broad definition provided by Labeo was not the original one: Servius Sulpicius suggested that one would only be liable for dolus if he fraudulently “pretended one thing but actually intended another” (Zimmermann). Yet, in classical law, the meaning of dolus significantly expanded. Ulpian provides the example of a dominus imposing a servitude on a piece of land between conducting a stipulatio and the actual macipatio As argued by Zimmermann, “actio de dolo could conveniently be used to fill in inequitable gaps within the Roman contractual system”: this shows another key aspect of the significance of dolus: it allowed the law of delict to intervene in certain contractual scenarios. An illustrative example can be found in the Codex: two slaves of different owners were in a romantic relationship: the owner of A wanted the owner of B to manumit B, so that both could be free. A’s owner promised to give B’s owner another slave in return in exchange for manumitting B However, after B’s release, A refused to perform his part of the agreement. While in later law this would be redressed by actio preaescripris verbis (as an innominate contract), clearly at the time innominate contracts were not yet redressed.

Yet. Actio de dolo could be used to address the fraudulent behaviour Overall, the residual delict of dolus allowed to “glue together” the Roman law of delict, allowing its scope to expand and gain greater significance in regulating the behaviour of Roman citizens

3: Dolus and other delicts

Given the two distinct meanings of dolus as discussed above, it is crucial to examine the relationship between the delict of dolus and dolus as a subrequirement of other delicts to truly understand the role that dolus played in the Roman law of delicts Given my prior discussion of furtum, I will first examine the fine distinction drawn between furtum and dolus, which often pretended challenges to the Roman jurists. Ulpian states that if A wishes to lend money to a respectable Titius, but B presents him with a “penniless Titius, as if he were opulent” and T then shares the money with B, both will be liable for theft: B for ope consilio, and T for actual theft This seems relatively self-explanatory: A only expresses his consent to lend money to a respectable Titius, and thus fraudulently presenting a penniless Titius, B is aware of A’s lack of consent and Titius performs the needed contrectatio.

However, Ulpian also discusses a very similar case: if B lends money from A and doesn’t lie as to his identity, but deceives A into thinking he is more opulent, he will be liable for dolus This can be explained by the lack of requisite contrectatio in the second case: A intended to lend money to B, he was just mistaken as to his attributes. Thus, while B has deceived A, he has not contrectacted the coins and was not acting directly against A’s consent:

for A agreed to lend the coins to B. Dolus thus provided redress for cases which deserved remedy, but did not fit in any other established categories. Another example worth examining is the “false weights” case, mentioned by Ulpian. He says that if A lent to B weights which were too heavy, Mela would have held him liable for theft He recounts Mela’s justification as “[for] you do not receive the goods in accordance with the will of the seller, since he is mistaken about the weight.” However, this does not accord with the understanding of furtum in the classical sense: B is unaware of the weights being faulty and thus does not have fraudulent intent, and A does not contrectact the thing. Since B can be seen as innocent, A’s actions can hardly be seen as ope consilio. However, this can give us an insight into the role of dolus as a separate delict: arguably, it was the distinct praetorian acknowledgement of dolus as a separately actionable delict that allowed furtum to achieve its developed shape. Without dolus, the definition of furtum would be accommodated to cover cases which deserved redress but technically were hard to classify as theft. Once dolus was singled out, furtum no longer needed to serve this role Thus dolus was crucial to the refinement of the other delictual categories, as it alleviated them of the need to cover scenarios which deserved redress but were difficult to reconcile with the rest of the delict.

4: Conclusion

In conclusion, dolus was crucial to the Roman law of delict: while it could initially be dismissed as a mere “residual action”, it had a great impact on the law of obligations First, it was the requisite element of individual delicts such as furtum or servi corrupto, which allowed to delineate their scope in a positive sense Second, it constituted a separate delict, which rendered the Roman law of delict more comprehensive. Finally, it also allowed for the refinement of other delictual categories in a negative sense: they no longer were stretched and re-interpreted to cover all sorts of factual scenarios. Instead, jurists were now free to define their scope according to the principles they identified as the cases falling outside of the distinct delicts could still be redressed under the praetorian delict of dolus

internationallaw

Maryam Mahmood

Mark: 77 5

There is a civil war in the State of Austen between the Austen government and the Meryton Liberation Front (MLF), which represents a minority ethnic group in Austen, the Merytons. The State of Pemberley is a supporter of the Merytons and has been providing the MLF with financial aid and weapons. Some former Pemberley military personnel are also serving with the MLF, including on the front lines. In April 2024, the MLF captured Longbourn, a territory within Austen previously under Austen’s control, and massacred a number of ethnic Austen people living in Longbourn. There is no doubt that these acts amount to crimes against humanity and genocide.

The State of Rosings blames Pemberley, on the grounds that the MLF would not have been able to capture Longbourn without Pemberley’s support.

Rosings and Pemberley are parties to the Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’). There is no similar treaty on crimes against humanity, but States are prohibited from committing crimes against humanity under customary international law.

Advise Rosings on whether it may invoke Pemberley’s responsibility in relation to genocide and crimes against humanity, and how it may do so.

Rosings (R) wishes to invoke the responsibility of Pemberley (P) in relation to genocide and crimes against humanity. The applicable rules in this area are found in the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts 2001 (ARSIWA). It is important to note at the outset that the Articles are not a treaty and thus not binding law – however, their current status allows regard to be had to the ARSIWA as a subsidiary means for identifying international law, being teachings of the most highly qualified publicists within Article 38(1)(d) of the Statute of the International Court of Justice.

Article 1 ARSIWA makes clear that every internationally wrongful act of a State entails that State’s international responsibility R must first show that there has indeed been an internationally wrongful act by P, asking whether the conduct of the MLF (which committed the crimes against humanity and genocide) is attributable to P Even if attribution is shown, R must also be advised as to whether R has any grounds for invoking P’s international responsibility under Part III ARSIWA.

Attribution

For the international responsibility of P to be engaged, it must be shown that the conduct complained of is attributable to P (Article 2(a) ARSIWA). On these facts, the conduct complained of has been perpetrated by the MLF, a liberation organisation representing the minority ethnic Meryton group in Austen. The MLF is arguably not a state organ of P within Article 4 ARSIWA (reflecting customary international law – Difference relating to immunity from legal process of a Special Rapporteur,

, Advisory Opinion), as it not acting in accordance with any of the laws of P (thus not a de jure state organ), nor is it under so much control by P that it would be right to equate the MLF with a de facto organ of P (Nicaragua) It is clear that there is a very high threshold of control by P which needs to be shown for any other conclusion to be reached (Bosnia Genocide Case) – the threshold is more than likely not met as, despite the provision of financial aid and weapons, and the presence of former Pemberley military personnel on the front lines, there is no evidence that the capture of Longbourn was under the command of P

The significance of the presence of former Pemberley military personnel should not be overstated when considering attribution, given that they are no longer part of the military of P and these individuals are ultimately exercising an individual choice to join the MLF in their private capacity. Even though R has argued that without P’s support the MLF could not have been captured, there is no objective evidence to verify this claim by R

The conduct of these private individuals should thus be prima facie unattributable to P, although it may be argued that Article 8 ARSIWA applies (reflecting customary international law – Bosnia Genocide Case). For this argument to succeed, effective control on the part of P must be established (Nicaragua), and it must also be shown that the MLF, in committing crimes against humanity and genocide, were in fact acting under this control As the Commentaries on Draft Article 8 highlight, mere support will not amount to control – rather, there must have been direct control of the operation capturing Longbourn.

There is no evidence to satisfy this test

although P supplied financial aid and weapons, the facts do not indicate any assistance in devising, planning and executing the operation during which the crimes occurred Although the ICTY at one point suggested that such ‘overall control’ of the MLF would be sufficient for attribution under Article 8, the effective control threshold from Nicaragua has been reaffirmed in Bosnia Genocide Case, and not met on these facts.

R will thus fail at the first hurdle as it is unable to show attribution under Part I ARSIWA. However, R may still want to know how it might have continued with invoking P’s responsibility if attribution had been shown.

Proceeding in the alternative where attribution was shown, the conduct in question must constitute a breach of an international obligation of P (Article 2(b) ARSIWA). This point is straightforward – assuming P was already a party to the Genocide Convention at the time the acts occurred (Article 13 ARSIWA), a breach of the primary rule has been committed, in addition to a breach of the customary international law prohibition of committing crimes against humanity.

The sources of these two obligations are different, but this is irrelevant (Article 12 ARSIWA) – breach of both obligations can be, and has been, shown in the same way, given that the facts state there is no doubt that crimes against humanity and genocide have occurred P cannot argue that there are circumstances precluding the wrongfulness of these breaches as Articles 20-25 ARSIWA are inapplicable where breaches of jus cogens are concerned (the prohibitions against genocide and crimes against humanity both being peremptory norms under Article 53 VCLT)

Invocation of P’s International Responsibility

Under Part III ARSIWA, P’s responsibility can be invoked only by an injured state within the meaning of Article 42 ARSIWA, or a state other than an injured state if Article 48 ARSIWA applies

In terms of invoking P’s responsibility for the commission of genocide by the MLF, R is arguably not an injured state under Article 42(a) ARSIWA as the obligation not to commit genocide under the Genocide Convention is not owed to R individually. The obligation is, however, owed to a group of states (parties to the Genocide Convention) of which R is a part (Article 42(b) ARSIWA), but it is arguably not the case that breach of the prohibition affecting members of ethnic Austen people in Austen specially affects R (Article 42(b)(i)) or is of such a character as radically to change the position of all the other states to which the obligation is owed with respect to the further performance of the obligation (Article 42(b)(ii)).

Instead, R might be better off invoking responsibility as a non-injured state under Article 48, arguing under Article 48(1)(a) that obligations under the Genocide Convention are owed to all state parties (they are obligations erga omnes partes) and all state parties have a collective interest in the Convention being followed (Belgium v Senegal). By analogy with The Gambia v Myanmar, R should then be able to invoke P’s international responsibility for the acts against ethnic Austen people in Longbourn, as it has a “common interest to ensure the prevention, suppression and punishment of genocide”

In terms of invoking P’s responsibility for the crimes against humanity, it is again submitted that Article 42 does not apply R is again advised to invoke responsibility as a non-injured state, this time under Article 48(1)(b), arguing that the erga omnes obligation under customary international law to prohibit crimes against humanity is owed to the international community as a whole Given the importance of the rights involved, “all states can be held to have a legal interest in their protection”, including R (Barcelona Traction)

R should note that, when invoking responsibility under Article 48 rather than Article 42, the content of state responsibility under Part II ARSIWA is slightly different. Under Article 48(2), cessation of the internationally wrongful act can still be sought, as well as assurances and guarantees of non-repetition in accordance with Article 30, but the performance of the obligation of reparation must now be done in the interest of the injured state (Austen) or the beneficiaries of the obligation breached (Article 48(2)(b)).

Designedby: Hannah Jeong

Kate Lin

Jiwon Heo