Bristol Law Review 2014 by UBLC

BRIS TOL LAW REVIEW THE

2014 Edition

BRIS TOL LAW REVIEW THE

2014 Edition

Editor-in-Chief

Eimile Stokes

Managing Editor

Senior Articles Editor

Spencer Turner

Tania Cheng-Davies

Senior Manuscript Editor

Senior Research Editor

Sherman Ng

Articles Editors

Georgina Evison Kate Bones Leila Gordon

Shaun White

Manuscript Editors

Danielle Colliver Giles Thompson Josh Thould

Research Editors

Alexander Chau Sofia Brondino Zavalla Vera Yeh Academic Advisor

Jennifer Collins

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Readers and Authors, Publishing this journal has been a challenging yet rewarding experience for me. I feel very lucky to have pursued this endeavour with such a supportive editorial team and law school. It would not have been possible without your hard work and coordination. Likewise, without the high quality submissions from such an array of talented authors, this publication would not have been successful. My favourite memory of this process has been the very first meeting we had as an editorial board. Developing our plan and hearing each editorâ&#x20AC;&#x2122;s ideas for what he or she wanted the journal to be was unbelievably encouraging. Unfortunately, as the second edition of the Bristol Law Review (BLR), we could not accomplish all of these ambitious goals. I had to be the voice of reason to remind the team that we needed to develop the BLR brand and garner more support for the journal before we could do things like publish in hardback. I think that this edition is an excellent step towards realising these dreams. This aspirational spirit continued to shine through the work of each editor and it is this work ethic that I hope teams of editors to come will try to capture. If they do, I know the BLR could grow to be all of the things our team wanted. I would like to say thank you to our Academic Advisor, Jennifer Collins, for all of your support and guidance and to Malcolm Evans, for providing our publicationâ&#x20AC;&#x2122;s featured letter. Finally, thank you to my team for whom this edition is dedicated. Good luck with all your future endeavours.

Eimile D. Stokes Editor-in-Chief Bristol Law Review 2014

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2014 Edition The chief purpose of studying law is to know the law. What does knowing the law mean? A knowledge of what it says, naturally. It also means knowing why it says what it says, what it is understood to mean, and how that meaning is to be understood. So armed, one can move on from the ‘is’ to the ‘ought’, and consider what the law might say, mean, be understood, etc, etc. None of this can be achieved without study, reflection and communication – three things which a university is intended to foster, provide and support. They are also things which require the direct and active participation of those involved in the study of law. Whilst traditionally law schools have been very good at helping students to study and reflect, perhaps they have not always been as focussed as they might have been upon fostering more general communication about the law by those students still engaged in their formal studies. The tendency has been for students to, well, study, and to share their reflections within the context of their studies but not beyond. Perhaps the thought has been that this is best left to those who have ‘mastered’ the subject. This is of course all very odd, as no-one ever really masters the law. There are always new questions to ask, new perspectives to explore, and new ideas with which to engage. All of us involved in legal study, teaching, research and writing are, in that sense, in a similar place and it is often those newest to the field who raise the most fundamental, penetrating and thought provoking questions. It is, then, very exciting to see the Bristol Law Review established as a forum in which those involved in coming to know the law through its study are able to communicate their thoughts and reflections to others, and in doing so contribute to the cycle of learning. In an age in which communication has rarely been easier, it is worth remembering that it is not only the fact of communication but also the form of communication that matters. There is a discipline to effective legal argumentation that itself needs to be learnt and mastered through preparation of ones arguments for presentation through publication. By facilitating the discussion of legal issues in the way it does, the BLR both contributes to this learning process and – above all - connects students with the more general discussions and debates concerning the law. Which is where they ought to be.

Malcolm D Evans, OBE Professor of Public International Law University of Bristol

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Articles The Upheaval of National Mechanisms Regarding the Executive Remuneration in Listed Companies - Looking at French, UK and Europe-Wide Rules on “Say on Pay” Tania Barton, Hugo Bodkin and Jean-Marie Pedron.................................................10 Using the Examples of Corporate Manslaughter and/or Corporate Liability for Bribery, Discuss Shiner’s Observation that “It May Seem as Though a Study of Criminalisation and Criminality is a Study of Actors and Actions the Outer Limits of Which are Set by Legal Doctrine, by Legal Definition. But This Is Not So.” Liam Boylan................................................................................................................26 Case Comment: Sims v Dacorum Borough Council at the Supreme Court Lewis Graham.............................................................................................................36 Discuss the Proposition that English Law is Generally Reluctant to Permit the Recovery of Negligently Inflicted Pure Economic Loss Oliver J. Whitehead.....................................................................................................41 A Doctrine of State Sovereignty Reconciled with the Protection of Human Rights: A Proposal for the Codification of a Doctrine of Humanitarian Intervention. Iyinoluwa Osundun.....................................................................................................50 Liability in the Absence of Fault: Can the Doctrine of Vicarious Liability be Theoretically Justified? Tom Dean...................................................................................................................84 Do English Law, Hague-Visby Rules and Rotterdam Rules Provide Adequate Legal Frameworks Regarding the Carriage of Dangerous Goods? Armandos Lestos.......................................................................................................106 Thwarting International Law: The Wall Meera Chander..........................................................................................................141 Should the Study of Men Rather than Women be the Focus of Feminist Legal Scholars’ Work in the 21st Century? Lara Conlan...............................................................................................................150

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Articles

The Upheaval of National Mechanisms Regarding the Executive Remuneration in Listed Companies- Looking at French, UK and Europe-Wide Rules on “Say on Pay” Tania Barton Hugo Bodkin Jean-Marie Pedron

1. Introduction In a famous quote, attributed to Theodore Roosevelt, it is said that in relation to employees: “appraisals are where you get together with your team leader and agree what an outstanding member of the team you are, how much your contribution has been valued, what massive potential you have and, in recognition of all this, would you mind having your salary halved.” However, for directors, the perceived trend of the past few years seems to have been the opposite, with a public outcry in response to huge salary payouts to directors and high-level executives of companies and banks who have been at the heart of the financial crisis. Take Jerry del Missier, the former Barclays Bank executive at the centre of the interest-rate rigging scandal that cost the lender £290m, who walked away with a pay-off of almost £9m.1 Or more generally the pay packets handed out at RBS and Barclays, which together paid 523 of their bankers more than £1m in the scandal-hit year of 2012, bearing in mind that RBS were fined £390m for attempting to rig the

1 Alistair Osborne and Jamie Dunkley, Libor scandal: ‘Barclays executive Jerry del Missier given £8.75m pay-off’ (The Telegraph, 25 July 2012) <http://www.telegraph.co.uk/finance/newsbysector/banksandfinance/9427881/Libor-scandal-Barclays-executive-Jerry-del-Missier-given-8.75m-pay-off.html> accessed 26 November 2014.

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key benchmark rate.2 Simon Walker, Director General of the Institute of Directors in the UK described it as follows: “[...] I think it is understandable that many people are concerned about the state of rewards for failure, and the disastrous effects of short-termism in some businesses.”3 But there have also been success stories, with directors’ remunerations approved by shareholders on an ongoing annual basis. Take as an example the French group Publicis, which is probably one of most successful in this area. In 2013, Publicis CEO Maurice Lévy was rewarded 4.5m Euros, having been paid 4.8m Euros in 2012. The entire remuneration package was made up of variable remuneration, based on Publicis’ performance. The shareholders approved the payment of the remuneration by 67.7%. The year before, the shareholders had voted in favour of the remuneration policy that set out the mechanism by which the variable remuneration of Mr Lévy was to be calculated. That remuneration policy was approved by 78.8% of the shareholders. 4 It is not surprising that with the economic crisis, different scandals breaking out, but also shareholders seeing empowerment by having a say on directors’ pay, that first the British government, then the European Commission decided to legislate on this remuneration matter. As a result of this, among other measures, ‘say on pay’ procedures have been introduced in various guises in many countries. In this essay, we wish to explore this topic, looking at say on pay rules in France, the UK and the proposed rules on ‘say on pay’ in Europe. B. Definitions ‘Say on pay’ can be defined as the vote of shareholders at a general meeting on the policy and/or various components of compensations of executive and/or non-executive directors, depending on the country.5 As we will see below in our compara2 Jill Treanor, ‘Bankers’ pay ‘unacceptable’ after scandals, says IoD head’ (The Guardian, 13 March 2013) <http://www.theguardian.com/business/2013/mar/13/bankers-pay-institute-of-directors> accessed 26 November 2014. 3 Treanor (n 2). 4 Lefigaro.fr avec AFP, ‘Publicis: le salaire de Maurice Lévy validé’ (Le Figaro, 28 May 2014). <http://www.lefigaro.fr/flash-eco/2014/05/28/97002-20140528FILWWW00166-publicis-le-salaire-demaurice-levy-valide.php> accessed 20 November 2014. 5 Institut Français des Administreurs, ‘Say on Pay: international comparisons and best practices’ (November 2013) <http://www.ifa-asso.com/_files/documents/fichiers/document-595.pdf> accessed 28 November 2014.

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tive analysis between the French and UK regimes, say on pay varies hugely depending on the country. Say on pay is applicable not only to the directors of the company but embraces also many other positions in a company. Under the most recent Directive proposal, as set out below, the term “director” includes “any member of the administrative, management or supervisory bodies of a company”. Say on pay may refer to both executive directors and non-executive directors.6 The executive director is involved in the day-to-day management of the company while a non-executive director is a member of the board of directors of a company who does not form part of the executive management team. Corporate governance promotes the appointment of non-executive directors as they advise and monitor the executive team. This distinction however, is not enforced by the law but has a strong impact in the practice. Executive and non-executive directors receive various forms of remuneration. As reviewed below in more detail, the UK and French regimes broadly define remuneration to include, among other elements, the fixed salary, variable remuneration, golden hello, golden handshake, stock options, retirement benefits or pension plans. B. Structure overview In order to explore this topic in more depth, we will consider the following questions: what are the current legal positions in the UK and France on remuneration policies, and in particular, on the say on pay regulations? What is the proposed regime suggested by the European Commission? What is the intended goal of the Commission in proposing it? Will the suggested proposal achieve what it sets out to do? What criticisms, suggestions and questions arise as a result of it? 2. COMPARATIVE ANALYSIS OF FRENCH AND UK REGIMES A. Background In accordance with the UK Companies Act 1862, the remuneration of directors had to be approved at the company’s general meeting.7 But as time went by, that general rule fell out of favour which led to the position of the Model Articles for 6 AFEP-MEDEF Code; Companies Act 2006. 7 Companies Act 1862, table A, art 54.

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companies which set out that the directors should determine their own remuneration. In 2002, the UK Government passed the Directors’ Remuneration Report Regulation 2002,8 which reintroduced a new shareholders’ vote on the directors’ remuneration for listed companies. That vote was at that time only advisory. Finally, under the Enterprise and Regulatory Reform Act 2013, UK listed companies are required to vote in general meeting on the directors’ pay policy. This vote is a binding vote on the company and all payments to directors must be in line with the approved policy. In addition, an advisory vote on actual pay packages is taken yearly. These new rules seem to be one step ahead of Europe and the European Commission in its latest proposal is looking to put similar requirements in place Europe-wide. In France no such rules have ever existed. The current socialist government, since its election in 2012, planned to legislate on directors’ remuneration. In May 2013, the French government abandoned a bill on directors’ remuneration.9 The two main French business groups, Association Française des Entreprises Privées (“AFEP”) and Mouvement des Entreprises de France (“MEDEF”) issued the non-binding AFEP-MEDEF governance code (“AFEP-MEDEF Code”) in June 2013. It introduces the say on pay principle. In France, there is no legal obligation to refer to a governance code. It is however, done by most listed companies.10 The AFEP-MEDEF Code is widespread in large listed companies in France11 but other codes exist as the MiddleNext Code designed for small and medium-sized companies. The latter does not include a say on pay mechanism. B. Comparison of Principal Elements (i) Who is a director or an executive? The French governance code defines “executive” as anyone who assumes the position of CEO, deputy CEO, president and members of the board of directors (“Di8 Directors’ Remuneration Report Regulations 2002, SI 2002/1986. 9 Elsa Conesa and Etienne Lefebvre and Elsa Freyssenet, ‘Pierre Moscovici : « Pas de loi sur la rémunération des patrons »‘ (Les Echos 23 May 2013) <http://www.lesechos.fr/23/05/2013/lesechos. fr/0202781775010_pierre-moscovici-----pas-de-loi-sur-la-remuneration-des-patrons--.htm# > accessed 28 November 2014. 10 Haut Comité de Gouvernance d’Entreprise, Activity report 2014, 2.4. 11 Haut Comité de Gouvernance d’Entreprise, Activity report 2014, 2.4.

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rectoire”), as well as managers of a partnership limited by shares.12 In the UK, the Companies Act 2006 defines a director in a much wider way as “any person occupying the position of director, by whatever name called”.13 (ii) What is a listed company? The say on pay provisions detailed below are only applicable to listed companies. Hence, our need to look at what companies fall within that definition. Under the British regime, listed companies are companies incorporated in the United Kingdom and subject to the Listing Rules of the London Stock Exchange.14 Furthermore, the definition also includes British-incorporated companies if they have been included on the official list of any Member State of the EEA or if their securities have been admitted to trading on the NYSE or Nasdaq.15 The AFEP-MEDEF Code applies to French companies, i.e. companies incorporated in France, listed on a regulated stock exchange.16 (iii) What kind of remuneration is targeted? In France, the board of directors has to submit to the shareholders in ordinary general assembly (called in France an “assemblée générale ordinaire” or “AGO”) information on the individual directors’ remuneration.17 The individual remuneration detail would include all fixed salary, variable remuneration, multi-year variable remuneration, any exceptional remunerations, all stock options, performance shares, golden hello, non-competition payments, retirement benefits, “retracts chapeaux” (top-up pension plans) and any other benefits in kind.18 In the UK, a similar report has to be produced by the board of directors to provide all the necessary information on the actual remuneration of the directors to the shareholders for each financial year of the company.19 In addition, a policy document needs to be prepared and submitted for approval to the shareholders in general meet12 AFEP-MEDEF Code 2013, Préambule. 13 Companies Act 2006, s 250. 14 Financial Conduct Authority, UK Listing Rules, 2014. 15 Companies Act 2006, s 385. 16 Code Monétaire et Financier, L. 421-1 and L. 421-2. 17 AFEP-MEDEF Code, 24.3. 18 AFEP-MEDEF Code, 24.3. 19 Companies Act 2006, s 420 and s 421.

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ing every three years. The Companies Act 2006 states that disclosure is required for remuneration relating to services20 provided by a director both to the company and to its subsidiary undertakings and is included irrespective of who paid it, i.e. the company, the subsidiary undertaking or a third party.21 The amounts included are for qualifying services, which means in relation to any person, his services as a director of the company, and his services at any time while he was a director of the company. C. Shareholder Voting Issues (i) What are the modalities of the vote? In France, once the remuneration report is submitted to the shareholders, an advisory ex post vote by shareholders takes place on a yearly basis. If the general assembly disagrees with the remuneration, as set out in the remuneration report, the board of directors, in accordance with the AFEP-MEDEF Code, has to put this matter on the next board meeting’s agenda and publish on the company website the actions it will take to answer the shareholders’ concerns.22 The board of directors is therefore alone in charge of deciding how to proceed following an unfavourable vote to the remuneration report. In the UK, from 2002 to 2013, the legislation required a vote of the shareholders only in advisory capacity. Since The Enterprise and Regulatory Reform Act 2013, two votes take place regarding the directors’ remuneration. In addition to the annual remuneration report, which continues to be subject to an advisory vote every year, a directors’ remuneration policy document must be approved by shareholders’ resolution at least every three years.23 This vote has binding authority. In any year where the annual remuneration report does not receive shareholder approval, the remuneration policy must be submitted to the shareholders at the next Annual General Meeting (“AGM”) for approval. This binding vote on the remuneration policy is arguably the most interesting difference between UK and French regimes. Whereas in the UK shareholders are given a proper right to have an impact on remuneration policy of the company, in 20 Companies Act 2006, Sch 8 para 44(1). 21 Companies Act 2006, Sch 8 para 46. 22 AFEP-MEDEF Code, 24.3. 23 Companies Act 2006, s 439.

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France this ex post vote on annual remuneration payments is not mandatory. In practice, it appears that most of the companies do have such a vote to comply with the AFEP-MEDEF Code. This ex post voluntary vote on the remuneration report, though non-binding, should not be underestimated as it gives shareholders an opportunity to express their views on directors’ remuneration. It also provides, especially in the event of the shareholders’ rejection of the remuneration report, an opportunity for the board to sit and discuss, informally, with their principal shareholders how their remuneration policy can be improved. (ii) What are the consequences of shareholder voting? In France, annual reports and a supervisory authority have been created to ensure the AFEP-MEDEF Code’s effectiveness. First, the AMF, the stock market regulator in France, issues an annual report on the productiveness of the AFEP-MEDEF Code.24 The AFEP-MEDEF also writes an annual report to evaluate the efficacy of its code.25 Both of them welcome the successful application of the say on pay principle. Secondly, the AFEP-MEDEF Code has introduced the “Haut Comité”, which is responsible for making sure that the recommendations of the code are respected.26 If a company does not apply the AFEP-MEDEF Code and does not provide a satisfactory explanation, the Haut Comité can pass a resolution, calling into question the board of directors’ decisions. If the board still does not comply with the Haut Comité’s resolution, this non-compliance will appear in the management report submitted to the shareholders at the next AGO. The Haut Comité also writes an annual report on the effectiveness of the AFEP-MEDEF Code.27 In the UK, in the event of default in complying with the notice to be given regarding the meeting at which the directors’ remuneration report is to be approved, an offence is committed by every officer of the company who is in default. A person guilty of an offence under this section is liable on summary conviction to a fine not

24 Autorité des Marchés Financiers, ‘activity report about corporate governance and executives’ remuneration 2014’ (22 September 2014) <http://www.amf-france.org/Actualites/Communiques-de-presse/AMF/annee_2014.html?docId=workspace%3A%2F%2FSpacesStore%2Fc9c2db6c-b4a1-44bb-ac66-baff1f7eec3a> accessed 28 November 2014. 25 AFEP, Activity Report 2013. 26 AFEP-MEDEF Code, 25.2. 27 Haut Comité de Gouvernance d’Entreprise, Activity Report 2014.

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exceeding level 3 (£ 1,000)28 on the standard scale.29 2. THE DIRECTIVE PROPOSAL In Part I we have seen in a comparative analysis the differences in France and in the UK regarding shareholders say on pay mechanisms. In this second part, we will consider this year’s proposal to amend the Shareholder Rights Directive of 2007 (2007/36/EC). This new proposal (the “Proposal”) sets out a structure, which is likely to shake up company procedures in the European Union. A. Background The European Commission (the “Commission”) has already worked towards ensuring that the remuneration levels of those in management positions were made more accountable. For example, Recommendation 2004/913/EC was introduced, which set out, among other elements, the requirement for the board to set out their remuneration policy for the shareholders, who would vote on it annually.30 Other instruments, such as the Capital Requirements Regulation and Directive CRR/CRD IV of 2013,31 cover remuneration policy in relation to directors of credit institutions and investment firms. However, the latest proposal is more far-reaching, affecting all listed companies within the EU. It is important for shareholders to monitor closely all aspects of management in the companies they are invested in, in order to hold the management of the company to account and in so doing to counteract short-term focused investment decisions of the board members. By discouraging excessive risk taking and aligning remuneration incentives to the company’s long-term interests, the Commission is looking to ensure European companies are sustainable in the long term. The UK, as described above, has already taken some action in the area of corporate governance, with its new remuneration reporting regime, introduced on 1 October 2013. However, national initiatives alone will not allow for a harmonised solution 28 Criminal Justice Act 1982, s 37. 29 Companies Act 2006, s 440. 30 Commission Recommendation 2004/913/EC of 14 December 2004 fostering an appropriate regime for the remuneration of directors of listed companies, 2004 O.J. 385/55. 31 Directive 2013/36/EU on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms (CRD IV) and Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms (CRR).

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across Europe and this is why the Commission is now proposing these amendments. The proposal was presented by the Commission on 9 April 2014. The aim of the Proposal is to have a unifying set of rules, promoting cross-border trade and strong competition within Europe. The Commission estimates that the new Directive will impact on 10,000 listed companies around Europe.32 The way the Commission hope to achieve the above aim is by focusing on the transparency requirements of the different parties, that is to say transparency requirements for (i) institutional investors and asset managers to disclose their investment and engagement policies regarding the companies in which they invest, (ii) shareholders so they can more easily exercise their rights, (iii) directors, by giving shareholders a European say on pay and with regards to related party transactions, and (iv) proxy advisors on their methodologies when preparing voting recommendations and on managing conflicts of interests. For the purpose of this essay we will focus on the remuneration element of the Proposal. B. Say On Pay (i) Intended goals It is this element, the new power given to shareholders in relation to the pay of directors, which we wish to review in detail. In summary, under the Proposal, for the first time, a European-wide say on pay would be introduced. Listed companies would need to disclose clear, comparable and comprehensive information on their remuneration policy for directors and on how they are put into practice. Although there is no cap on remuneration at EU level, each company would have to put its remuneration policy to a binding shareholders’ vote; the policy would need to include a maximum level for executive pay. It would also need to explain how the policy contributes to the long-term interests and sustainability of the company. The policy would also explain how the remuneration provisions of employees of the company are taken into account when setting the policy. In order to do so in a measurable way, a ratio between average employees and executive pay is suggested to be included. 32 Barnier M, Speech 9 April 2014, ‘Présentation d’un train de mesures sur la Gouvernance des entreprises’ <http://www.denederlandsegrondwet.nl/9353000/1/j9vvihlf299q0sr/vjism2nzq2ug?ctx=vi03gkztbfkx&start_tab0=80> accessed 28 November 2014.

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If the goals of the proposal are met, the following would be achieved: shareholders would be given increased visibility on directors’ pay, but more importantly, they would also have a say on the remuneration policy of directors by requiring them to vote at least every three years on its contents and by voting annually on a remuneration report, which sets out the detail of the pay packages of the directors. The Proposal suggests that two new articles be included on remuneration, namely articles (i) 9a referring to “right to vote on the remuneration policy” and (ii) 9b setting out “information to be provided in the remuneration report and right to vote on the remuneration report”. (ii) Article 9a: the remuneration policy Taking each in turn, article 9a states that shareholders have the right to vote, at least every three years, on the remuneration policy as regards directors. The policy would be essential to the company, as remuneration can only be paid to directors in accordance with an approved policy. All aspects of remuneration need to be presented in the remuneration policy, including (i) any fixed and variable remuneration, (ii) maximum levels of remuneration, (iii) a ratio between the average remuneration of directors and the average remuneration of full time employees and why this ratio is considered appropriate, (iv) the main terms of the contracts of directors, including their duration and the applicable notice periods and payments linked to termination of contracts, (v) an explanation of all significant changes where the policy is revised since the last approved policy, and (vi) a description setting out how the remuneration policy is in line with the longterm interests of the company. After approval by the shareholders, the policy is to be made available on the company’s website for at least the duration of its applicability. There are limited exceptions to the suggested rule. Companies can, for example, pay outside the approved policy in case of a newly appointed director, although any such payment would be subject to shareholders’ approval. Also, exceptionally, the ratio can be excluded, although the remuneration policy would need to explain why such an omission is acceptable given the specific circumstances of the company in question.

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(iii) Article 9b: the remuneration report Article 9b sets out the information to be provided in the annual remuneration report and right to vote on the remuneration report. The report must be clear and understandable, providing a comprehensive overview of the remuneration to individual directors and would contain all of the following elements: (i) the total remuneration and how it was paid (fixed/variable) and how it links in with long-term performance of the company, (ii) any change to the remuneration must be justified and compared with the change in value of the company and change in average remuneration of other employees of the company, (iii) any other remuneration received outside of the company by entities within the same company group, (iv) shares and share options and any conditions attached to these, and (v) information on the role of any remuneration committee. Shareholders at the AGM would vote on the remuneration report of the past financial year. In summary, the proposal aims to provide transparency on remuneration policy and the actual remuneration awarded to directors and in so doing create a better link between pay and performance of directors by improving shareholder understanding of directorsâ&#x20AC;&#x2122; remuneration. It is also thought that this transparency will translate into less complex remuneration structures. In Member States where national legislation provides for a two-tier system, namely a management board and a supervisory board, that supervisory board would usually be responsible for the remuneration for the members of the management board. This Proposal does not affect this role of the supervisory board that would develop the remuneration policy, which would then be submitted to shareholders for confirmation. In addition, the supervisory board, on the basis of the approved policy, would set the remuneration to be paid to individual directors on the management board. As for the next steps to be taken, the proposal will be submitted to the Council and the European Parliament for their consideration and final adoption under the ordinary legislative procedure. It is envisaged that the amendments will come into force at the beginning of 2015. Subsequently Member States will then have 18 months to implement the Directive into national law, following its entry into force.

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3. CRITICISMS, SUGGESTIONS AND QUESTIONS ARISING FROM SAY ON PAY REGULATIONS As we have seen in Part 1, the UK and France have adopted a say on pay mechanism that varies a lot in its modalities. In the UK, the vote is mandatory and binding, while in France, the vote is voluntary and advisory. The Commission’s Proposal is summarily based on the UK say on pay mechanism. It questions the effectiveness of the French soft law approach. It has been argued that the effectiveness of the say on pay solution lies mainly in its political sanction. A board of directors may feel that it is difficult to uphold remuneration if it has been rejected by the shareholders. It may also take this refusal into account when deciding on future remuneration. This ex post control alone may therefore already modify the future remuneration policy ex ante.33 The implementation of the Proposal in the UK would not trigger many changes to its legal framework as the Proposal is based on the UK say on pay modalities. On the contrary, in France, such a binding say on pay mechanism would have to be enforced by law, as it is contrary to the exclusive jurisdiction of the board of directors in this matter, as set out in the French commercial law.34 The substantial consequences of the implementation of the Proposal raises questions regarding the Proposal itself and the say on pay mechanism. A. On the Proposal When reviewing the Proposal in detail, there are some elements that may need further consideration before finalising the amendments. The Proposal suggests that companies can, for example, pay outside the approved policy in case of a newly appointed director, although any such payment would be subject to later shareholder approval. This could however lead to difficulties in practice, as there would be uncertainty as to whether the negotiated remuneration of such newly recruited director would be approved. This in turn may prevent recruitment of the most suited candidate, if their remuneration package were to include any element outside of the approved remuneration policy. Another example is that the Proposal explains that, in some circumstances, the 33 Michel Germain, ‘Corporate governance in listed companies’ (2013) 47 La Semaine Juridique Entreprise et Affaires 1639. 34 Code of Commerce, article L. 225-47; L. 225-53 and L. 225-63.

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ratio between average director’s earning and average full time employee’s earnings could be excluded. The Proposal goes on to state that the remuneration policy would need to explain why such an omission is acceptable given the specific circumstances of the company in question. However, would it not for consistency purposes be easier to state that a ratio should always be included, but that the company can then go on to explain why the result may not be relevant for that specific company. Whilst the consequences for a vote against the annual remuneration report in the UK are clearly set out in legislation, in the Proposal, when shareholders at the AGM vote on the remuneration report of the past financial year, it is unclear what a vote against the report would entail. The Proposal only suggests that the report in the following year would set out how the vote was then taken into account in that year. What is the incentive for the company to ensure the annual report is approved by shareholder vote? What does this report add in addition to the remuneration policy? Will this Proposal lead to a situation where remuneration monopolises the dialogue between shareholders and management to the detriment of other important issues such as future strategy? B. On the Function of Say On Pay Rules It seems that there are two ways in which to view say on pay. On the one hand, more conservatively, it can be argued that say on pay aims to ensure agreement between the board of directors and the shareholders.35 This concept suggests that if figures show that there is no decrease in the directors’ remuneration where a say on pay mechanism is in place, it demonstrates that shareholders and the board of directors are in unison on the direction of remuneration policy taken by the board. The only sanction triggered by an unfavourable vote would be the market distrust following a board’s lack of reaction to the shareholders’ disapproval. Institutional shareholders however often have the majority of the shares within the company. Even if they do not, “golden shares” permit shareholders with less than 50% of the shares to represent more than 50% of the voting rights. Therefore, the vote on remuneration is often locked in advance due to informal arrangements before the general assembly between these important shareholders and the board of

35 Stéphane Torck, ‘Rémunération des dirigeants de sociétés cotées : la régulation plutôt que la moralisation’ (2013) 10 Droit des Sociétés 163.

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directors.36 On the other hand, it can be said that say on pay is a more radical instrument, designed to decrease the remuneration of directors and other high-level executives purely to make the perception of corporate sector more palatable, more acceptable, to public opinion. If it is this aim that is targeted with say on pay mechanisms, it is not clear if the outcome will be as clear-cut as intended. The question is to determine whether or not say on pay rules are a benefit to a company’s long-term performance. The Commission, in its explanatory text to the Proposal, refers to the competitiveness and long-term sustainability of companies.37 Even if say on pay helps to decrease directors’ remuneration, is this really enhancing the “competitiveness and long-term sustainability” of the companies across the EU? Is there direct correlation between long-term interests of a company and high remuneration paid to its directors? In reality, say on pay and the Proposal may in fact be a political answer to a deeper issue that cannot be solved by law or governance codes. This issue is the social acceptability of high remuneration packages paid to directors during an economic crisis. When an average employee earns only a small fraction of what many directors in the headlines receive, there is a lot of political pressure, in times of economic crisis, to stop this process. This is especially the case when it is felt that taxpayers are being squeezed to save many of the companies and banks famously paying out large remuneration packages. This may therefore be less a legal issue than a social one. Maybe the question needs to be how directors can restore the trust between them and the public at large. Can directors demonstrate how their remuneration may be justified in light of the company’s performance? Could it be that promoting social acceptability of directors’ remuneration either by law or auto regulation is a utopia?38

36 Nina Godart, ‘Rémunération des patrons : Pourquoi le say-on-pay ne fonctionne pas en France’ (2014) BFM Business. 37 Proposal for a Directive of the European Parliament and of the council amending Directive 2007/36/ EC (May 2014). 38 Joëlle Simon, ‘Le code de gouvernance AFEP-MEDEF’ Gazette du Palais (28 August 2014) 20.

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Bibliography Legislation AFEP-MEDEF Code Code Monétaire et Financier Code of Commerce Companies Act 2006 Criminal Justice Act 1982 Directive 2013/36/EU on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms (CRD IV) and Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms (CRR) Directors’ Remuneration Report Regulations 2002, SI 2002/1986 Commission Recommendation 2004/913/EC of 14 December 2004 fostering an appropriate regime for the remuneration of directors of listed companies, 2004 O.J. 385/55 Secondary Sources AFEP, Activity Report 2013 Autorité des Marchés Financiers, ‘activity report about corporate governance and executives’ remuneration 2014’ (22 September 2014) <http://www.amf-france. org/Actualites/Communiques-de-presse/AMF/annee_2014.html?docId=workspace%3A%2F%2FSpacesStore%2Fc9c2db6c-b4a1-44bb-ac66-baff1f7eec3a> accessed 28 November 2014 Barnier M, Speech 9 April 2014, ‘Présentation d’un train de mesures sur la Gouvernance des entreprises’ <http://www.denederlandsegrondwet.nl/9353000/1/j9vvihlf299q0sr/vjism2nzq2ug?ctx=vi03gkztbfkx&start_tab0=80> accessed 28 November 2014 Conesa E and others, ‘Pierre Moscovici : « Pas de loi sur la rémunération des patrons »’ (Les Echos 23 May 2013) <http://www.lesechos.fr/23/05/2013/lesechos. fr/0202781775010_pierre-moscovici-----pas-de-loi-sur-la-remuneration-des-patrons--.htm# > accessed 28 November 2014 European Commission, Proposal for a Directive of the European Parliament and of the council amending Directive 2007/36/EC (May 2014) Financial Conduct Authority, UK Listing Rules, 2014

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Germain M, ‘Corporate governance in listed companies’ (2013) 47 La Semaine Juridique Entreprise et Affaires 1639 Godart N, ‘Rémunération des patrons : Pourquoi le say-on-pay ne fonctionne pas en France’ (2014) BFM Business Haut Comité de Gouvernance d’Entreprise, Activity Report 2014 Institut Français des Administreurs, ‘Say on Pay: international comparisons and best practices’ (November 2013) <http://www.ifa-asso.com/_files/documents/fichiers/ document-595.pdf> accessed 28 November 2014 Lefigaro.fr avec AFP, ‘Publicis: le salaire de Maurice Lévy validé’ (Le Figaro, 28 May 2014) <http://www.lefigaro.fr/flash-eco/2014/05/28/9700220140528FILWWW00166-publicis-le-salaire-de-maurice-levy-valide.php> accessed 20 November 2014 Osborne A and Dunkley J, Libor scandal: ‘Barclays executive Jerry del Missier given £8.75m pay-off’ (The Telegraph, 25 July 2012) <http://www.telegraph.co.uk/ finance/newsbysector/banksandfinance/9427881/Libor-scandal-Barclays-executive-Jerry-del-Missier-given-8.75m-pay-off.html> accessed 26 November 2014 Simon J, ‘Le code de gouvernance AFEP-MEDEF’ Gazette du Palais (28 August 2014) 20 Torck S, ‘Rémunération des dirigeants de sociétés cotées : la régulation plutôt que la moralisation’ (2013) 10 Droit des Sociétés 163 Treanor J, ‘Bankers’ pay ‘unacceptable’ after scandals, says IoD head’ (The Guardian, 13 March 2013) <http://www.theguardian.com/business/2013/mar/13/bankers-pay-institute-of-directors> accessed 26 November 2014

Using the examples of corporate manslaughter and/or corporate liability for bribery, discuss Shiner’s observation that “It may seem as though a study of criminalisation and criminality is a study of actors and actions the outer limits of which are set by legal doctrine, by legal definition. But this is not so.” Liam Boylan

Whether legal doctrine and definition shape the outer limits of the study of criminalisation and criminality depends on the model of criminal law reform one uses. They do shape the outer limits of it under the traditional model, where certain basic principles form the body of criminal law doctrine, and are reformed in accordance with the results of research. However, proponents of the social constructivist model argue that it is through “complex social practices’ that our ideas of crime develop.1 A third way is possible. Shiner believes ‘some form of social-constructivist account’ to be correct, but argues that the traditional model need not be completely abandoned. He advocates a blending of the analytical study of legal doctrine with the emphasis on social practices, the latter checking the former whilst still accepting it as one means of criminal law reform.2 This is an appropriate position to take. The need for blending these two models has been demonstrated in the law of corporate manslaughter and corporate liability for bribery. Criminal law doctrine is founded upon theorizations concerning individual wrongdoing. Certainly, the law evolved to allow individual wrongdoers within corporations to be prosecuted, which might suggest that a blended approach would not be necessary in this area. Arguments to this effect shall be considered first. However, this is only to show that they can be dismissed relatively easily. Crimes occur in a more complicated environment than legal doctrine alone can account for. The greater part of this paper will demonstrate this. It will show how underlying causes of these crimes can be found in a combination of economic and political pressures. It will then be shown how these pressures are exacerbated by institutional and international contexts. Consequently, it will be shown that sanctions which are 1 Roger Shiner, ‘Theorizing Criminal Law Reform’ (2009) 3 Criminal Law and Philosophy 171, 173, 174-5. 2 Shiner (n 1) 175, 185.

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shaped entirely by legal doctrine are not adequate deterrents for these crimes. It will be concluded that this can be changed through a new criminological approach, to one more focused on the notion of ‘harm’ than ‘crime.’

1. Finding Individual Criminals Criminal law doctrine is traditionally concerned with individual wrongdoing. Criminalization of corporations thus entails viewing them not as faceless but as constituted of a number of contracting individuals. Accordingly, the law has evolved to apply this view. British courts developed the ‘identification principle,’ starting with Lennards Carrying Co. v Asiatic Petroleum.3 This restricts liability of a corporation for mala prohibita offences to situations where ‘senior officers... are implicated.’4 If the individual is a director, managing director, superior officer or someone to whom the latter have delegated some part of their managerial functions with discretion to act independently,5 the guilty mind of such an official will render the company itself guilty.6 2. Causes and Contexts Attempts by judges to reform criminal law only extend the boundaries of legal doctrine; they allow for very little if any emphasis on ‘complex social practices.’ This is because they observe criminality from what Hart called the ‘internal point of view.’7 Their starting point is to work with what doctrine tells them is already criminal, and there is a key distinction which this process fails to make. ‘Crimes’ are behaviours for which legislatures have created offences. However, as zemiology makes clear,8 not all harms to society are criminalized, and some are criminalized so ineffectively as 3 [1915] A.C. 705. 4 Celia Wells, ‘Enforcing anti bribery laws against transnational corporations – a UK perspective’ in P Heywood and others (eds), Integrity: interdisciplinary essays on theory and practice. The European and Northern American perspectives (Palgrave Macmillan 2014). 5 Tesco Supermarkets Ltd v Nattrass [1972] A.C. 153 [171]. 6 Bolton Engineering Co v Graham [1957] 1 QB 159 (Denning LJ); Rex v I.C.R. Haulage Ltd [1944] KB 551. 7 Herbert Lionel Adolphus Hart, The Concept of Law, (Clarendon Law Series 1961). 8 Paddy Hillyard and Steve Tombs, Beyond Criminology: Taking Harm Seriously (Pluto Press 2004).

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to not significantly reduce their occurrence. The harms in corporate manslaughter are most visible in the annual number of work-related deaths; in Britain, estimates reach 20,000,9 many from occupational diseases.10 In corporate bribery, harm can be seen in economic costs.11 However, the implementation of the identification principle and the new Corporate Manslaughter and Bribery Acts has not ensured that behaviours causing these harms are sufficiently criminalized. This is because their use has not enabled the deliverance of an appropriate level of punishment relative to the harm caused. This is particularly clear when corporate crime is compared to street crime. The identification principle was difficult to apply; this can be inferred from the unsuccessful prosecutions such as the 1990 P&O Ferries and 2002 Potters Bar cases. As for the Corporate Manslaughter and Corporate Homicide Act 2007, under it key social concepts of corporate culture, attitudes and practices are only factors which the jury may take into account.12 These key contributing factors are not emphasized enough to enable many successful prosecutions. The guidance to the new offence of failing to prevent bribery in the Bribery Act 2010 is similarly helpful to corporate defendants in its ambiguity.13 These acts merely introduced new forms of liability for the specific offences they referred to; they produced no wider change in corporate liability as a whole. Harms can remain so ineffectively criminalized because of problems in the criminalization process itself. Legislators and judges are drawn from narrow sections of the populations of their jurisdictions.14 Hence the theory of Henry and Milanovich15 that legislatures and the laws they create are expressions of power relations in wider society, and that the interests of the powerful are reflected in which harms are and are not criminalized. Economic pressures and related influences from political actors on criminalization display this in practice. A. Economic and Political Pressures 9 Trade Union Congress (2012) “Remember the UK’s 20,000 work-related deaths this Saturday,”(25 April 2012) <http://www.tuc.org.uk/workplace-issues/workers-memorial-day/01-health-and-safety/remember-uks20000-work-related-deaths> accessed 29 April 2014. 10 Centre for Corporate Accountability, “New research shows significant drop in in HSE injury investigation levels,” (7 November 2008). <http://www.corporateaccountability.org.uk/press_releases/2008/ nov7unite.htm> accessed 29 April 2014. 11 Gary Slapper and Steve Tombs, Corporate Crime, (Pearson Education Ltd 1999) 64. 12 Corporate Manslaughter and Corporate Homicide Act 2007 s 3(a). 13 Bribery Act 2010 ss 7-9. 14 William Jones Chambliss and Milton Mankof (eds), Whose Law, What Order? (John Wiley & Sons Inc, 1976) 80, 97. 15 Stuart Henry and Dragan Milanovich, Constitutive Criminology (SAGE Publications 1996) 118.

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Underlying economic pressures are a key cause of social harms and of the failure to criminalize them. For example, organizational culture and structure are key factors in corporate crime.16 In a market environment, this culture may be one driven by profit-seeking, conducive to taking risks. Competition creates uncertainty; offences such as bribery can therefore be viewed as attempts to reduce this uncertainty.17 Slapper and Tombs18 argue that deviance is produced by processes which ‘thrive in an environment dominated by concerns of cost and benefits.’ Indeed, pressure for returns on investment in the subsidiary in Bhopal contributed to the cut-backs in the budget of the plant, leading to the disaster it suffered in 1984 and great loss of life.19 Political considerations may also hinder the criminalization of certain harms. Daily emphasis on the need for economic growth generated by a strong private sector means the state often resolves conflicts with business conservatively for fear of growth declining, and regulatory agencies cautiously ensure their decisions do not ‘unreasonably infringe’ on businesses to lower their productivity.20 There can even be direct links between corporate and political actors in these situations. For example, British governments, eager to reap financial gains from North Sea oil, effectively encouraged low levels of compliance with safety regulations.21 B. The Social, Institutional and International Context The British court system has not proved a great means of mitigating the effects of these pressures. Particularly, the use of plea-bargaining helps corporations greatly; their economic strength gives them great bargaining power. The Innospec bribery case, analysed by Wells, illustrates this. The British SFO and the US Department of Justice insisted against a penalty which would ‘drive the company out of business’.22 Consequently, an agreement was reached between UK and US authorities for Innospec Ltd to pay a civil recovery order and a confiscation order, but not a criminal 16 Sally Simpson, Corporate Crime, Law and Social Control (CUP 2002) 157. 17 Hazel Croall, White Collar Crime (Open University Press 1992) 70. 18 Slapper and Tombs (n 11) 134-135. 19 Frank Pearce and Steve Tombs, Toxic Capitalism: Corporate Crime and the Chemical Industry (Dartmouth Publishing Company Ltd 1998) 121. 20 Peter Yeager, The Limits of Law (CUP: 1993) 32-33, 39. 21 WG Carson, The Other Price of Britain’s Oil: Safety and Control in the North Sea (Martin Robertson 1982). 22 Celia Wells, ‘Who’s Afraid of the Bribery Act 2010?’ [2012] 5 JBL, 420-431.

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fine. Similarly, in corporate manslaughter, fines under the 2007 Act should ‘not have the effect of putting the defendant out of business.’23 To criticise this practice is not to propagate a crime control model of justice. Rather, it is to show that economic interests are serving to undermine the due process safeguards of the need for fair trials and bringing all wrongdoers, regardless of their legal form or financial power, before courts of law. Nor has globalization helped to mitigate the impact of economic and political pressures; it has made it more difficult to do so. When dealing with international corporate manslaughter, the UK government differentiates between parent companies registered abroad with subsidiaries in England, and parent companies registered in England but doing business through subsidiaries abroad: the latter would not be tried for corporate killing they committed abroad.24 International co-operation has not resolved these jurisdictional issues to ensure corporate defendants receive proportionate punishments. For example, in the Innospec prosecution the US wished to make a plea agreement under its Federal Rules of Criminal Procedure, to which the UK had no equivalent procedure (the SFO cannot make an agreement with an offender as to the penalty for the offence).25 The agreement the US wanted, and had asked the British court to approve, put civil orders over a fine. The judge imposed the agreed sum “as a fine,” but essentially he was keeping within the financial limits of a civil punishment, rather than a criminal one. C. Sanctions and Responses Clearly, power in the criminal justice system is being exercised in a way which enables the certain harms to remain not criminalised, or ineffectively so, in accordance with the interests of powerful actors in the economic, political and legislative spheres. Shiner has explained how power is a ‘normatively neutral notion,’ but can become oppressive once the practices which embody it are ‘disciplinary or hierarchical,’ as the practice of criminalization is.26 Power in the British criminal justice system has indeed become oppressive, reflecting powerful interests in its treatment of corporate crimes 23 Neil Davies, ‘Sentencing guidance: corporate manslaughter and health and safety offences causing death – maintaining the status quo?’ [2010] 5 Criminal Law Review 404. 24 Home Office, ‘Reforming the Law on Involuntary Manslaughter: The Government’s Proposals’ (May 2000) paras 3.7.1 -3.7.3, <http://www.corporateaccountability.org.uk/dl/manslaughter/reform/archive/ homeofficedraft2000.pdf> accessed 29 April 2014. 25 Wells (n 22) 420-431. 26 Shiner (n 1) 171, 173, 177.

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relative to street crimes. This position could be altered, if a criminological approach was adopted in which the distinction between ‘crimes’ and ‘harms’ was emphasized. The search for causes of corporate crime, as Sutherland27 worked on, is problematic. Etiological approaches presuppose that crime and the person labelled criminal are in the same conceptual package; they equate the action and the actors28. As noted above, those labels themselves are informed by legislative decisions on ‘what will be called crime,’ labels reinforced at every stage of the criminal justice system from legislators to law enforcers29. Therefore, causal theories of criminal behaviour just become the empirical evidence for that theorist’s conception of reality.30 Rather than looking for the causes of crimes using existing doctrine as our starting point, if deviance is viewed not as caused by particular events but, as Henry and Milanovich see it,31 as part of processes which ‘divide responsibility into relations of hierarchy and authority,’ the oppressive use of power in the criminal justice system can be exposed. This clash of approaches is shown starkly in the debate on sanctions for corporate crimes. The traditional sanctions, often used to punish individuals, have been relatively unsuccessful deterrents. Contrastingly, there are strong arguments to suggest that sanctions informed by the ‘complex social practices’ within and surrounding corporations may have more success. The problems with traditional methods become quickly apparent. Criminal law alone is not an effective deterrent, and nor are civil actions such as tort claims. The theoretical difference is that damages are to be compensatory, whereas sentencing is to be “punitive and preventive.”32 But civil claims, to corporations, are merely felt like a tax.33 Criminal fines can be difficult to ascertain, and can have a ‘spill-over effect,’ for example raising prices, and the result may just be that companies see compliance in ‘cost-benefit terms.’34 There is evidence to suggest that it is profitable for firms to violate law, when risk of discovery is low and benefits of a crime outweigh the rela-

27 Edwin Sutherland, ‘White-Collar Criminality’ in Gilbert Geis and Robert Meier (eds), White-Collar Crime: Offences in Business, Politics, and the Professions (The Free Press 1977) 47. 28 Clayton Hartjen, Crime and Criminality (Praeger Publishers Inc. 1974) 87. 29 Jeffrey Reiman, The Rich Get Richer and The Poor Get Prison (2nd edn, John Wiley & Sons, 1984) 39. 30 Hartjen (n 28) 87-88. 31 Henry and Milanovich (n 15) 153, 179. 32 Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ [2000] 116 LQR 234. 33 Simpson (n 16) 60, 66, 69. 34 Croall (n 17) 156; James Gobert and Maurice Punch, Rethinking Corporate Crime (Butterworths LexisNexis 2003) 231, 233.

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tively modest financial costs of prosecution and guilty findings.35 With fines, we are treating the corporation like a rational, economic individual, assuming it will change its internal affairs accordingly after seeing that its profits will otherwise suffer. In reality, the corporation puts its survival before profits36. Rational individual comparisons are problematic because management is not as risk-averse as that comparison would suggest. Coffee calls it the ‘risky shift’ phenomenon: “in a group, individuals take more ‘risky’ decisions than when alone.37 To break out of this clash of criminal and civil sanctions, combinations of approaches have been encouraged. Examples in the deterrence area include community service orders; publicly shaming the offending corporations can also be effective by ‘raising public consciousness,’ and encouraging discussion of corporate social responsibility.38 For preventive measures, a combination of state and self-regulation can be encouraged. Self-regulation can be backed up by tougher penalties, as Braithwaite argues for his theory of ‘re-integrative shaming.’ He believes self-regulation should not merely increase the number of monitors in organizations, but develop a culture based on trust and co-operation.39 Simpson similarly argues for a compliance process founded on self-regulation and co-operation.40 The need for this is exemplified in the area of corporate manslaughter. From 2001/2 to 2006/7, Health and Safety Executive investigation levels into major injuries to workers declined by 43%.41 This does not indicate an active, cooperative and trusting regulatory relationship. 3. CONCLUSION There is a distinction between harms and crimes. ‘Complex social practices,’ within politics, economics and wider contexts are responsible for the behaviours leading to harms. They are also responsible for the oppressive exercise of power relations which determine what behaviours are and are not criminalized. The search for causes of crime is heavily anchored in criminal law doctrine and ignorant of the social real35 Simpson (n 16) 48, 49. 36 Christopher Stone, ‘Social Control of Corporate Behaviour’ in MD Ermann and RJ Lundman, Corporate and Governmental Deviance (OUP 1978) 245, 247. 37 John Coffee Jr, ‘Corporate Crime and Punishment: A Non-Chicago View of the Economics of Criminal Sanctions’ [1980] 17 American Criminal Law Review 3, 419-478. 38 Gobert and Punch (n 34) 234. 39 Croall (n17) 152. 40 Simpson (n 16) 161. 41 Centre for Corporate Accountability (n 10).

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ity around it. If criminologists end this search and instead use an emphasis on social practices to simply look for harms in society, they will expose this oppressive use of power in the criminalisation process, and the undermining of due process safeguards. In summary, â&#x20AC;&#x153;complex social practicesâ&#x20AC;? do inform criminality and criminalisation, but whether they shape the outer limits of the study of the latter depends on the model used. The third way Shiner constructed provides a route out of the clash between the traditional and social constructivist models. In the area of corporate crime, the results of traditional study failed to create deterrents to the harmful behaviour in question. Consequently, the social-constructivist model was also used, and commentators called for an inter-disciplinary approach, using social concepts and ideas from politics, business and economics to understand their subject. Meanwhile, new offences were created. Now, the outer limits of their study will not be shaped by legal doctrine. Rather, against the backdrop of a new legislative framework, they can work with both this social-scientific research and the new legal doctrine on the offences to shape their study of corporate criminality.

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Bibliography List of references Ashworth A, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 LQR 234 Carson WG, The Other Price of Britain’s Oil: Safety and Control in the North Sea (Martin Robertson 1982) Centre for Corporate Accountability, ‘New research shows significant drop in in HSE injury investigation levels’ (7 November 2008) <http://www.corporateaccountability. org.uk/press_releases/2008/nov7unite.htm> accessed 29th April 2014 Chambliss WJ, and Mankoff, M (eds), Whose Law, What Order? (John Wiley & Sons Inc. 1976) Coffee JC, ‘Corporate Crime and Punishment: A Non-Chicago View of the Economics of Criminal Sanctions’ (1980) 17 American Criminal Law Review 3 Croall H, White Collar Crime (Open University Press 1992) Davies N, ‘Sentencing guidance: corporate manslaughter and health and safety offences causing death – maintaining the status quo?’ (2010) 5 Criminal Law Review 404. Geis G and Meier R (eds), White-Collar Crime, (revised ed, The Free Press (New York), Collier Macmillan Publishers 1977) Gobert J and Punch M, Rethinking Corporate Crime (Butterworths LexisNexis 2003) Hart HLA, The Concept of Law, (Clarendon Law Series 1961) Hartjen C, Crime and Criminality (Praeger Publishers Inc. 1974) Henry S and Milanovich, D, Constitutive Criminology (SAGE Publications 1996) Hilyard P and Tombs S, Beyond Criminology: Taking Harm Seriously (Pluto Press 2004) Home Office, ‘Reforming the Law on Involuntary Manslaughter: The Government’s Proposals’ (May 2000), <http://www.corporateaccountability.org.uk/dl/manslaughter/ reform/archive/homeofficedraft2000.pdf> accessed 29 April 2014 Pearce F and Tombs S, Toxic Capitalism: Corporate Crime and the Chemical Industry (Dartmouth Publishing Company Ltd 1998) Reiman J, The Rich Get Richer and The Poor Get Prison (2nd edn, John Wiley & Sons 1984) Shiner RA, ‘Theorizing Criminal Law Reform’ (2009) 3 Criminal Law and Philosophy 171

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Simpson SS, Corporate Crime, Law and Social Control (Cambridge University Press 2002) Slapper G and Tombs S, Corporate Crime (Pearson Education Ltd 1999) Stone CD, ‘Social Control of Corporate Behaviour’ in MD Ermann and RJ Lundman (eds), Corporate and Governmental Deviance (Oxford University Press 1978) Sutherland E, ‘White-Collar Criminality’ in Gilbert Geis and Robert Meier (eds), White-Collar Crime: Offences in Business, Politics, and the Professions (The Free Press 1977) Trade Union Congress (2012) “Remember the UK’s 20,000 work-related deaths this Saturday,”(25 April 2012) <http://www.tuc.org.uk/workplace-issues/workers-memorial-day/01-health-and-safety/remember-uks-20000-work-related-deaths> accessed 29 April 2014 Wells C, ‘Enforcing anti bribery laws against transnational corporations – a UK perspective’ in Heywood P and others (eds), Integrity: interdisciplinary essays on theory and practice. The European and Northern American perspectives (Palgrave Macmillan 2014) Wells C, ‘Who’s Afraid of the Bribery Act 2010?’ (2012) 5 JBL Yeager P, The Limits of Law (Cambridge University Press 1993) Other sources consulted Easterbrook FH and Fischel DR, ‘The Corporate Contract’ in Bebchuck LA (ed), Corporate and Economic Analysis (Cambridge University Press 1990) Glasbeek H, Wealth by Stealth (Between the Lines 2002) Health and Safety Executive, ‘Work-related respiratory disease in Great Britain’ (2013) <http://www.hse.gov.uk/statistics/causdis/respiratory-diseases.pdf> accessed 29 May 2014 Lacey N, ‘Historicising Criminalisation: Conceptual and Empirical Issues’ Modern Law Review, (2009) 72(6) 936-960.

Case Comment: Sims v Dacorum Borough Council at the Supreme Court Lewis Graham

The recent Supreme Court decision in Sims v Dacorum Borough Council1 revisited, for the first time since 1992, the salient and important question of whether a joint tenancy can be terminated lawfully by a single party to it, and whether this is consistent with provisions under the Human Rights Act. 1. The Facts The facts of the case are fairly uncontroversial: a married couple, Mr and Mrs Sims, owned a shared home under a joint periodic tenancy for many years. Their amicable relationship came to an end in 2009, and, following allegations of domestic violence, Mrs Sims moved out with one of their children. One of the conditions in Mrs Sims’ application for new housing arrangements was the termination of her existing tenancy. In carrying this out, she effectively terminated not only her own right to stay there, but also her husband’s, without his permission. Dacorum Borough Council sought, as a result, to evict Mr Sims from the home which was no longer rightfully his. Mr Sims argued that this was unlawful. Of course, this particular factual situation is not new, and its outcome has been uniform in law since at least the 1830s (as Lord Neuberger readily points out2) but its modern authority largely rests on the House of Lords’ decision in Hammersmith v Monk.3 There, the court stated that any one of the joint tenants can elect to terminate a periodic joint tenancy, regardless of the consent of the other party. The main challenge to Monk in this case, in both appeal courts, was that since it pre-dated the passing of the Human Rights Act 1998 in domestic law, it should now be considered wrongfully decided in light of the entrenched rights now inherent in our legal system, namely the right a private and family life under Article 8 of the European Convention on Human 1 2 3

[2014] UKSC 63. ibid [1]. [1992] 1 AC 478 (HL).

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Rights, and the right to protection of property under Article 1 of the First Protocol (‘A1P1’). 2. The Case at the Court of Appeal At first instance, the court, predictably, followed authorities and upheld the Council’s right to evict Mr Sims. On appeal, his counsel had, unusually, conceded that their legal challenge would fail, as the Court would have no choice but to follow the binding House of Lords precedent in Monk in any case. The primary concern for Mr Sims here was arguing that the case would have good reason to go to the Supreme Court, and that challenging the validity of the Monk ruling there would have a realistic chance of success. Mummery LJ robustly dismissed the appeal, as expected, and, crucially, refused permission to appeal to the Supreme Court.4 His reasoning was blunt and concise and his conclusions were but five paragraphs long. Neither Article 8 or Article 1 of the First Protocol were engaged, in his view, as Mr Sims was seeking something unreasonable, namely the artificial enhancement of property rights which were never intended to exist.5 Moreover, the challenge to the Supreme Court was deemed ‘unarguable’, with Mummery LJ railing: “I cannot think of a sensible purpose that would be served by the expenditure of yet more public funds (on both sides) on a repeat of this debate before five (or even more) justices of the Supreme Court of the United Kingdom.”6 3. THE CASE AT THE SUPREME COURT Despite the odds (and likely much to the contempt of Mummery LJ) the case successfully made its way to the Supreme Court, with ‘yet more public funds’ being used to ask not five, but seven Supreme Court justices on the validity of Monk. Despite the success of the admissibility question, the substantive outcome of the appeal mirrored that of the Court of Appeal, and as such the Supreme Court, in a single judgment delivered by Lord Neuberger (to which all six other judges agreed without qualification), unanimously dismissed Mr Sims’ claim.7 The argument under Article 1 of the First Protocol was readily disposed of. Lord Neuberger emphasised that the contract to which Mr Sims was a party involved spe4 Sims v Dacorum BC [2013] EWCA Civ 12 [38]. 5 ibid [35]-[36]. 6 ibid [37]. 7 Sims (n 1) [26].

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cific terms regarding both the creation and termination of property rights. In particular, Clause 100 of the contract specifically set out that the property would be lost if either party served notice to quit, and Clause 101 stated that the decision as to whether the remaining party should remain is one for the Council to make. Because Mr Sims willingly agreed to such terms, any argument under A1P1 was difficult to make, and Neuberger agreed with counsel for Dacorum that ‘the loss of [Mr Sims’] property right is a result of the bargain that he himself made’.8 The only tenable argument on the facts in this respect, according to Neuberger, would have been a challenge either to the validity of the respective clauses, or against the decision of the Council to evict Mr Sims under those clauses. In any case, both the terms of the agreement and the Council’s decision were deemed to be perfectly reasonable, with Neuberger relying largely on the reasoned analysis of the District Judge at first instance.9 As a result, the claim under A1P1 was dismissed.10 Moving on to the challenge under Article 8, Neuberger was perhaps more accommodating than Mummery LJ before him, accepting that ‘there is no doubt but that [Mr Sims] was entitled to raise the question of the proportionality of Dacorum’s pursuit of the claim for possession of the house’.11 However, this argument also proved unsuccessful. He said that the trial judge had been right in saying that the Council’s decision to evict Mr Sims was indeed a proportionate one, taking into account all of the circumstances. Whilst the service of a notice to quit could indeed have jeopardised his right to remain in his home, an infringement of his right to respect for his home did not automatically result.12 Naturally, this was balanced against other considerations, namely Mr Sims’ free and consensual agreement to contract terms (clauses 100 and 101, above) and the statutory protection which he rightfully benefited from.13 The result was that, in agreement with the District Judge at first instance, the Council had acted proportionately and reasonably in deciding, as they were very much obliged to do, to remove Mr Sims from the property. To put it another way, whilst Article 8 may be engaged (going at least marginally further than Mummery LJ) there existed entirely sufficient justifications for the Council’s decision, and so no breach was found. Thus, the Article 8 claim was also dismissed, and with that, Mr 8 ibid [15]. 9 ibid [16]-[18]. 10 ibid [19]. 11 ibid [21]. 12 ibid [22]. 13 ibid [23].

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Sims’ whole claim failed.14 4. CONCLUSION: WHAT OF HUMAN RIGHTS? The decision in Sims may not be particularly surprising to lawyers (not a single judge in either the Court of Appeal or Supreme Court would allow the claim, after all). Mr Sims was, in effect, asking the court to dis-apply a longstanding rule of property law on some very tenuous grounds. The importance of the Supreme Court’s decision, especially buttressed by a panel of seven judges, lies in its practical importance for those involved in the very frequent situation where a joint tenancy is unilaterally ended. On the facts, it seems to be a sensible conclusion, regardless of any sympathy for Mr Sims (although the allegations of domestic violence surrounding the claim certainly do not help him in this respect). The decision highlights the difficulty of trying to diffuse, if it were in any way practical, the contract law elements from the property law elements which are inherent in situations like these. The reasoning for dismissal of both the A1P1 and Article 8 claims lay largely on the terms of the agreement which Mr Sims signed up to, and these contractual procedures affect the operation of substantive property rights. A question remains, in theory, as to the outcome of a case where such an agreement is, hypothetically, weak or legally inoperable? And indeed, although implicit, the law has moved on since Monk and the Human Rights Act has indeed had an impact on this area of law.15 Lord Neuberger may have found that the Council’s decision to evict was proportionate on the facts, but it is possible to envisage situations where this will not be so. The factors here which justified eviction (being bound by explicit terms of the agreement, statutory protection, the necessity of a court order which must be made in light of all considerations in each particular instance) may not necessarily be present in all cases. A finding of a breach of Article 8, however remote, is still a palpable possibility, something which would not be said following Monk strictly. Indeed, vague or illegal terms of agreement, relied on so heavily on the facts of this case, may create a very real chance of this happening. As such, the decision in Sims does not conclusively deny the prospect of Human Rights claims being successful in all joint tenancy termination cases; in the right circumstances, there certainly remains scope for their operation. 14 ibid [25]-[26]. 15 Manchester CC v Pinnock [2010] UKSC 45.

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Bibliography European Convention on Human Rights Hammersmith v Monk [1992] 1 AC 478 (HL) Human Rights Act 1998 Manchester CC v Pinnock [2010] UKSC 45 Sims v Dacorum Borough Council [2013] EWCA Civ 12, [2014] UKSC 63

Discuss the Proposition that English Law is Generally Reluctant to Permit the Recovery of Negligently Inflicted Pure Economic Loss Oliver J. Whitehead

One of the basic functions of tort is to award compensation for loss.1 The famous dicta of Lord Blackburn in Livingstone v Rawyards Coal Co2 explains that compensation should be for “the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”3 Simply put, it seeks to repair the damage that has been done to an injured party. This is an admirable aim and in many cases the award of compensation has been that simple. Unfortunately, many cases are too complex to allow such elegant simplicity to define the approach to damages. English law demonstrates that there are a variety of tortious problems that cannot be allowed to be repaired by Lord Blackburn’s simple rubric. As the law has developed, so have the variety of public policy arguments, exceptions and legal principles with which to bring more nuanced and contextually appropriate judgments. The law exists in this area not just to protect the interests of those who have been wronged, but also to protect society by providing reasonable limits to recovery. This paper will consider the reluctance of English law to permit recovery in cases of negligently inflicted pure economic loss and argue that this is due to several main factors; the fundamental philosophy of tort, a policy position regarding the nature of economic relationships, preventing the establishment of duty of care far beyond what is reasonable or foreseeable. It will also discuss tests which do allow for recovery under Hedley Byrne & Co Ltd v Heller & Partners Ltd4 and Caparo Industries plc v Dickman.5 Finally it will contend that in English law at least, it appears the law of contract is considered superior when considering cases of economic loss. The first consideration is defining economic loss. As the proposition alludes, En1 2 3 4 5

Paula Giliker and Silas Bekwith, Tort (4th edn, Sweet & Maxwell 2011) 2. [1880] 5 App Cas 25. ibid [39] (Lord Blackburn). [1964] AC 465. [1990] UKHL 2.

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glish law has not been reluctant to consider economic loss per se. Rather, it has sought to separate the notions of ‘consequential’ economic loss and ‘pure’ economic loss. The difference has been characterised by the location of the damage. Consequential economic loss quite simply means “financial loss that is consequent upon damage to property owned by the claimant”6 or, to put it another way, there is a material loss to the claimant whether that be loss of earnings capacity or some other effect directly related to the tortious act. Pure economic loss may be defined as “loss that is purely financial, in the sense that it does not result from damage to the claimant’s property or injury to the claimant’s person”.7 The division could be typified as the difference between ‘actual’ damage and ‘abstract’ damage. The law quite happily awards compensation for consequential loss. Indeed it is arguable that this is what Lord Blackburn meant in Livingstone. It is in cases of pure economic loss that the law has shown considerable reticence in awarding compensation. There are several cases that illustrate the conception of pure economic loss and have provided the backbone for subsequent decisions. Firstly, there is Cattle v Stockton Waterworks.8 In this case the claimant had been contracted to complete work for a third party. Due to the negligence of the defendants, Stockton Waterworks, a leaking pipe caused damage to the third party’s property. This damage required the claimant to spend more during his work. As he was performing under a fixed price, Mr Cattle lost his profit as the negligence had caused his costs to rise and he couldn’t pass this on to the contracting party. He sued for his loss of profit. In the leading judgment Blackburn J held that it was impossible for Mr Cattle to sue as he did not hold a proprietary interest in the land that was damaged. If the courts allowed the claim then they would be opening the door to a vast number of claims for damage when there was only contractual interest. Blackburn states about the case, “we should be glad to avoid giving it effect. But if we did so, we should establish an authority for saying that, in such a case as that of Rylands v Fletcher… the defendant would be liable, not only to an action by the owner of the drowned mine, and by such of his workmen as had their tools or clothes destroyed, but also to an action by every workman and person employed in the mine, who 6 7 8

Giliker & Beckwith , Tort (n 1) 74. ibid (n 1) 74. [1875] LR 10 QB 453.

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in consequence of the stoppage made less wages than he would otherwise have done.”9 This was the first example in the law of reference to the notions of ‘crushing liability’, the ‘floodgates’ argument and the court’s aim of preventing the establishment of a duty of care to basically anyone who could show an economic interest in the damage no matter how remote. This philosophical position was given greater clarity decades later in Spartan Steels & Alloys Ltd v Martin & Co Ltd.10 In this case the defendant’s employees negligently damaged an electricity cable supplying the claimant’s factory with electricity. Due to the subsequent loss of power the claimant suffered physical damage to the metal the factory was producing, the furnace that was producing it, and economic loss from not being able to complete the planned work schedule of further ‘melts’. The first instance judgment held that they could recover for the immediate damage and the subsequent ‘abstract’ pure economic loss from the loss of profits. The Court of Appeal reversed the decision with Lord Denning MR delivering the leading judgment: “At bottom I think the question of recovering economic loss is one of policy… so as to limit the responsibility of the defendant. Whenever the courts set bounds to the damages recoverable - saying that they are, or are not, too remote - they do it as matter of policy so as to limit the liability of the defendant.”11 The Court of Appeal held that the relationship between the damage and the loss of profit on the intended ‘melts’ was too remote to be considered relational or proximate to the original physical damage. This decision reflects a tendency within the English law to avoid crippling individuals with burdens that he or she could not reasonably be expected to mitigate, the so called “floodgates” or “crushing liability” argument. Lord Denning MR suggests that it is the claimant’s responsibility to ensure an adequate level of insurance as part of the costs of doing business, especially in situations where there is a potential for damage. Denning continues, “if claims for economic loss were permitted for this particular hazard, there would be no end of claims. Some might be genuine, but many might be inflated, or even false...If there was economic loss 9 ibid [457] (Lord Blackburn). 10 [1973] QB 27. 11 ibid [36] (Lord Dennning MR).

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on one day, did the claimant do his best to mitigate it by working harder next day? and so forth. Rather than expose claimants to such temptation and defendants to such hard labour - on comparatively small claims - it is better to disallow economic loss. ”12 This body of case law demonstrates one of the core conceptual challenges at the heart of compensation in tort - where to limit compensation. It is difficult to establish an intellectually coherent position in support of the claimant in Spartan Steels. This is because the law cannot, and should not, be forced to deal with uncertainty beyond what is already established as part of the chain of causation. To make an abstract, and admittedly simple, example: in the Spartan Steels case, while it is easy to understand the loss in terms of the melt already ruined in the burner (consequential loss), there is less intellectual merit in trying to claim for the profit on theoretical melts that could have occurred while the burner was out of action. It is akin to arguing that a very simple duty of care that would occur under Nettleship v Weston13 could possibly extend to my pure economic loss because I was on my way to lay a bet on the favourite for the Cheltenham Gold Cup and an accident held me up. There can be no proof that I was on my way there, or that I was going to lay a bet. All that can be proved beyond reasonable doubt is that I was on my way somewhere. Tortious claims cannot, and should not, be allowed to indulge the fanciful or promote a dishonest approach to assessing the relative position of the parties. The English approach to pure economic loss reflects this philosophical position; to do otherwise as a broad doctrine would undermine the very purpose of tort in the common law. One of the central limbs of the English approach to the problem of pure economic loss regards the notion of proximity and reasonable foreseeability in tort. It is here that the law becomes quite problematic, with several competing strategies all appearing to have good authority.14 Proximity and reasonable foreseeability are the primary concerns in regard to one of the most important exemptions to the general reluctance to compensate for pure economic loss, established in the case of Hedley Byrne v Heller & Partners.15 In this case the claimants asked the defendant bank to check the creditworthiness of a potential new client for their advertising services. The bank provided a negligent statement of the financial health of the company. The 12 13 14 15

[1973] QB 27 [38] (Lord Denning MR). [1971] 2 QB 691. Kit Barker, ‘Wielding Occam’s Razor: Pruning Strategies for Economic Loss’ (2006) 26 OJLS 289. [1964] AC 465.

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company subsequently went into liquidation and the claimants lost a significant sum. They were unsuccessful in their claim due to a well-drawn disclaimer on the part of the bank. Nevertheless, the House of Lords considered how the case would have been decided regarding the negligence as if the disclaimer did not exist. They developed a two-stage test to establish the existence of a duty of care when providing a statement. Giliker summarised them neatly as “the existence of a special relationship between the claimant and the defendant involving an assumption or responsibility by the defendant, and reasonable reliance by the claimant.”16 This case has proven somewhat problematic and controversial. However, as Steyn LJ notes in Williams v Natural Life Health Foods17, “The extended Hedley Byrne principle is the rationalisation or technique adopted by English law to provide a remedy for the recovery of damages in respect of economic loss caused by the negligent performance of services.”18 The decision in Hedley Byrne and its application in subsequent cases appear to act as evidence against the proposition under consideration here. Certainly it has created a powerful, although admittedly highly fact sensitive, approach to allowing for the recovery of negligently inflicted pure economic loss. English law has found the three stage test in Caparo v Dickman19, reasonable foreseeability, a relationship of proximity and fairness, justness and reasonableness of imposing a duty a more satisfactory method of dealing with duty of care in general, and of equal if not more importance than the ‘assumption of responsibility’ in the Hedley Byrne criteria in deciding economic loss cases. The contention that they are discrete tests is perhaps a false dichotomy. As Steele contends commenting on Customs and Excise Commissioners v Barclays Bank,20 “...it should be said that in the Court of Appeal a number of wrong approaches to the reconciliation of Caparo and Hedley Byrne had begun to emerge. The Court of Appeal began to treat the ‘assumption of responsibility’ and the three stage approach, as alternative

tests… In fact there is no reason to assume that the two tests will 16 17 18 19 20

Giliker & Beckwith, Tort (n 1) 92. [1998]1 WLR 830. [1998]1 WLR 830 [834] (Lord Steyn). [1990] 2 AC 605. [2004] 1 WLR 2027, [2006] UKHL 28, [2006] 3 WLR 1 (HL).

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lead to the same answer.”21 This case offers an interesting and modern study of the Courts’ interpretation of the complexities of case law and considers overarching policy concerns alongside them. The importance of this case cannot be overstated, it reconciled two difficult methodologies of establishing a duty of care in economic loss cases and established the conditions under which there would be compensation. Demonstrating the importance of policy issues Lord Bingham returned to thinking in line with the famous policy concerns of Cardozo,22 “Lastly, it seems to me in the final analysis unjust and unreasonable that the bank should...become exposed to a liability which was in this case for a few million pounds only, but might in another case be for very much more.”23 Even the recent moves towards the allowance of recovery have demonstrated the fundamental doctrine at the heart of the English law, that recovery for pure economic loss should be a somewhat difficult needle to thread. Another recent case demonstrating the unwillingness to benevolently establish a duty of care for a pure economic loss was West Bromwich Albion Football Club Ltd v El-Safty.24 Here the courts refused to find that, though admittedly following a negligent treatment plan, the surgeon treating the injured player owed a duty of care to the football club. The argument that the surgeon had, under the Hedley Byrne criteria, ‘voluntarily assumed responsibility’ failed, due to the “the fact that the central purpose of the work was for the surgeon to provide advice to the patient on medical matters.”25 As Stanton further points out “Under the heading of fair, just and reasonable, it was emphasised that the club could have sought specific advice from the surgeon had it wished to and that the primary responsibility for insuring against the risk that clubs will suffer financial damage when their players careers are cut short by injury should rest with the clubs.”26 The echoes of Lord Denning’s dicta in Spartan Steels27 are very clear here, and perhaps this sums up the defining importance of policy concerns when considering these complex cases. Finally there is an argument to be made that a significant reason for the reluctance to allow recovery of negligently inflicted pure economic loss is the importance 21 Jenny Steele, Tort Law: Text, Cases and Materials (Oxford University Press, 2010) 395. 22 “liability in an indeterminate amount for an indeterminate time to an indeterminate class” [1931] 174 NE 441. 23 3 WLR 1 (HL). 24 [2006] EWCA 1299. 25 Keith Stanton, ‘Pure Economic Loss: Back to Basics in the 21’ (2007) 15 Century Tort L Review 7. 26 Stanton (n 22). 27 [1973] QB 27 [39] (Lord Denning MR).

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of contract law. In his judgment of The Aliakmon28 Goff LJ states the “philosophy of the market place has always been to allow for making profit by causing others economic loss... and that recognised wrongs involving interference with others’ contracts are limited to specific intentional wrongs such as inducing a breach of contract or conspiracy. Certainly there seems to have developed an understanding that economic loss at the hands of others is something we have to accept without legal redress.”29 The structure of the English capitalist marketplace necessitates the fact that pure economic loss is probable, to allow a generalised rule of recovery would undermine the very fabric of our economic society. Many of the cases regarding pure economic loss are located within commercial relationships. There are many remedies available to claimants where they have suffered economic loss. Some of these specifically aid recovery of economic losses that would otherwise have to be attempted in tort. One such example is the Misrepresentation Act 1967 which protects parties under contract from negligent misstatement, another is the Contracts (Rights of Third Parties Act) 1999 which enables third parties to claim as if they had been a party to the original contract - an act which would have significantly aided Mr Cattle in Stockton. Recent developments regarding the doctrine of privity have afforded a much greater deal of protection to those who were previously barred under the aforementioned exclusions in tort established in Cattle and Spartan Steels. Analysing the claim that economic loss is not generally recoverable where this would undermine contractual intentions Giliker & Beckwith state that “freedom of contract exists precisely to allow the parties to trade off quality against price. If tort law begins to impose obligations to supply goods of a certain quality, it interferes with the process of bargaining, rendering the rules of contract law redundant.”30 It is clear with the recent statutory developments and the insistence of Lord Goff in The Aliakmon that contract law must have primacy when it comes to dealing with economic losses occurring in the course of normal economic activity. In the hierarchy of English law, it is preferable to allow freedom of contract to hold sway and for parties to nego28 29 30

[1985] 2 All ER 44. [1985] 2 All ER 44 [73] (Goff LJ). Giliker & Beckwith, Tort (n 1) 80.

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tiate terms over the conceptualisation of economic risk. This preference, as evidenced in case law, plays a significant role in the general reluctance to allow recovery for negligently inflicted pure economic loss. In conclusion the English approach reflects the fundamental philosophical nature of a capitalist economy that some people may suffer economic harm as a result of the actions of others. When it comes to negligently inflicted pure economic loss the law has demonstrated considerable reluctance to allow recovery. This paper has demonstrated there are consistent policy reasons across the whole spectrum of common law, even within cases which allow for the construction of duty of care and recovery, which justify the placing of sensible limits on what can be recovered and when. These reasons have accurately entered the legal lexicon as preventing the opening of ‘floodgates’ of tenuously built claims and preventing a ‘crippling liability’ on those who have no reasonable expectation of being subject to such reliability. Where there was perhaps inequitable unfairness, for example regarding the rights of third parties, there has been legislative reform, pushing recovery for pure economic loss perhaps further into the law of contract. In recent years the courts have demonstrated a greater willingness to allow recovery under both Hedley Byrne and Caparo, but they have employed sensible limits as evidenced in Barclays and El-Safty to prevent this getting out of hand.

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Bibliography Legislation The Misrepresentation Act 1967 Contracts (Rights of Third Parties Act) 1999 List of cases Caparo v Dickman [1990] 2 AC 605 Cattle v Stockton Waterworks [1875] LR 10 QB 453 Customs and Excise Commissioners v Barclays Bank [2006] 3 WLR 1 (HL) Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 Leigh and Sullivan v Aliakmon Shipping Co Ltd [1985] 2 All ER 44 Livingstone v Rawyards Coal Co [1880] 5 App Cas 25 Spartan Steels & Alloys Ltd v Martin & Co Ltd [1973] QB 27 Ultramares Corporation v Touche [1931] 174 NE 441 West Bromwich Albion Football Club Ltd v El-Safty [2006] EWCA 1299 Williams v Natural Life Health Foods Ltd [1998] 2 All ER 577 Secondary sources Barker K, ‘Wielding Occam’s Razor: Pruning Strategies for Economic Loss’ (2006) 26 OJLS 289 Giliker P and Beckwith S, Tort (4ht edn, Sweet & Maxwell 2011) Stanton K,‘Pure Economic Loss: Back to Basics in the 21’ (2007) 15 Century Tort L Review 7 Steele J, Tort Law: Text, Cases and Materials (Oxford University Press, 2010) Other sources consulted Giliker P, ‘Revisiting Pure Economic Loss: Lessons to be learnt from the Supreme Court of Canada’ (2005) 25 Legal Studies 49 Palmer and Bussani, ‘Pure Economic Loss: The Ways to Recovery’ (2007) 11 EJCL 3 Robertson S, ‘On the Function of the Law of Negligence’ (2013) 33 OJLS 31

A Doctrine of State Sovereignty Reconciled With the Protection of Human Rights: A Proposal For the Codification of a Doctrine of Humanitarian Intervention. Iyinoluwa Osundun

Abstract This piece proposes a codification of a doctrine of humanitarian intervention permitting intervention to take place outside the United Nations Security Council (UNSC). This proposal was motivated by the reluctance within the UNSC to authorise the use of force in Syria despite the escalating unrest and failure of its government to comply with the UNSCâ&#x20AC;&#x2122;s demands. Before proposing reform, I explore pertinent legal provisions in international law and demonstrate the per se illegality of a doctrine of humanitarian intervention. After this I consider the reasons why there is a need for a doctrine of humanitarian intervention and the benefits that could arise as a result. Conversely, I explore tensions that arise between state sovereignty and humanitarian intervention and explicate how they could be reconciled in support of a codification of a doctrine of humanitarian intervention. Furthermore, I briefly consider the tension that may arise between humanitarian intervention and peace. Subsequently, I then analyse two aspects of reform proposed, the form codification should take and the criteria of reform. Having done this, I then conclude on the form codification should take which will make codification more likely to come about and review the prominent points highlighted in this article. 1. Introduction The failure of the United Nations Security Council (UNSC) to authorise the use of force in order to halt the egregious human rights abuses in Syria reveals a limitation in the monopolisation of power within this body under Chapter VII of the Charter of

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the United Nations (UN Charter).1 This provision posits the use of force within the UNSC’s ambit to ‘restore international peace and security’.2 It was reported that Syria had encountered nearly 93,000 deaths in a perilous conflict,3 where the use of chemical weapons has been expressed as a threat to international peace and security by the UNSC.4 However, the UNSC has urged that a conference should take place in order for Syria to adopt a six-point plan, ‘including a cessation of violence in all its forms’.5 In light of this approach, the need for forcible intervention outside the UNSC remains fertile ground for debate. The reluctance to use force and emphasis on diplomatic methods despite the worsening conflict elucidates a deeper tension: the dichotomy between the concept of state sovereignty and the protection of human rights. A traditional notion of sovereignty emphasises states’ freedom from external influences,6 and countries like Russia and China have used their veto power to block draft resolutions that have ‘opened the door to military intervention’ due to respect for sovereignty.7 On the other hand, permanent member states such as the UK have expressed the need for the use of military action as a consequence for non-compliance, to show the ‘seriousness needed to end the killing’.8 These two varying perspectives illustrate the deep-seated issue beneath the use of the veto power exercised by states such as Russia and China. By vetoing resolutions, which is symbolic of respecting state sovereignty, military force is prohibited as it is necessary under Art 27 that none of the permanent members veto a resolution if force is to be authorised under Chapter VII.9 A prominent challenge asserted by Kofi Annan, is brought to the fore in light of the UNSC’s failure to use force: If humanitarian intervention is, indeed an unacceptable assault on sovereignty, how should we respond to Rwanda, to Srebrenica, to gross and systematic violations

1 Charter of the United Nations (UN Charter) (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, ch VII. 2 ibid art. 42. 3 UN, ‘Nearly 93,000 people killed in ‘vicious’ Syria conflict- UN human rights chief’ (UN News, 13 June 2013) UN News Centre <http://www.un.org/apps/news/story.asp?NewsID=45162#.UxHmDvl_s3l> accessed 22 February 2014. 4 UNSC Res 2118 (27 September 2013) UN Doc S/RES/2118, para 1. 5 UN, ‘Action Group for Syria Final Communiqué’ (30 June 2012) <http://www.un.org/News/dh/infocus/ Syria/FinalCommuniqueActionGroupforSyria.pdf> accessed 22 February 2014. 6 James Pattison, Humanitarian Intervention and the Responsibility to Protect: Who should intervene? (OUP Oxford 2010) 72. 7 UN Press Release (19 July 2012) UN Doc SC/10714 per Vitaly Churkin. 8 ibid per Mark Lyall Grant. 9 UN Charter (n 1) art 27.

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of human rights that offend every precept of our common humanity?10 Over a decade after this challenge was posed, the tensions between sovereignty and protecting human rights which have prohibited the use of force, raise the same question as to how the international community should respond to grave violations of human rights in Syria. This dilemma resulting from collective decision-making within the UNSC has been characterised by the ‘sword of Damocles over the head of collective decision-making’.11 Calls have been made for the ‘elimination’ of the veto power of permanent UNSC members;12 however the French representative has stated that limiting this would involve the five permanent members ‘suspending that power voluntarily’ and collectively when addressing mass crimes.13 It is difficult to see how these states may voluntarily revoke their veto power especially where it may result in them being victims of intervention or sanctions. Without relinquishing their veto power to bring about change to the UN Charter to enshrine a new composition of the UNSC in international law, the veto power of one state could inhibit reform. Due to practical difficulties in proposing reform pertaining to the structure of the UNSC, this piece seeks to propose codification of a doctrine of Humanitarian Intervention (HI), which may be more attainable. Before proceeding, it is imperative to define what HI is. James Pattison defines HI as: “Forcible military action by an external agent in the relevant political community with the predominant purpose of preventing, reducing, or halting an ongoing or impending grievous suffering or loss of life.”14 This definition encapsulates the need for an intention to end or prevent suffering which is the humanitarian purpose behind intervention. The intention to prevent and halt suffering is in line with the grounds on which the United Nations General Assembly (UNGA) has set out to permit intervention under the Responsibility to Protect Doctrine (R2P). Under this doctrine the international community, through the UN, 10 UNGA ‘Report of the Secretary-General on the work of the organization’ 55th Session (2000) Supp No.1 UN Doc. A/55/1, para 37. 11 Yogesh K Tyagi, ‘The concept of Humanitarian Intervention Revisited’ (1995) 16 MICH.J.INT’L L. 883, 901. 12 UN Press Release (29 October 2013) UN Doc SC/11164. 13 ibid per Gérard Araud. 14 Pattison (n 6) 24-30.

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has the responsibility to ‘help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’.15 However, the definition formulated by Pattison does not clearly state whether the state in which intervention takes place has to consent to the use of force or how such force is authorised. Holzgefe interprets HI as the threat or use of force to prevent or end ‘widespread…violations’ of human rights, without consent of the state ‘within whose territory force is applied’.16 Without specifying that the use of force takes place outside the UNSC one may argue that forcible intervention authorised by the UNSC comes under this doctrine. However, the UNSC does not rely on a doctrine of HI but the R2P doctrine. This is evidenced in the intervention in Libya where the UNSC urged member states ‘to take all necessary measures… to protect civilians’.17 Kabia further expands on this definition and states that the humanitarian purpose (preventing or halting human rights violations) is the sole reason for intervention, taking place without discriminating on grounds of nationality and without authorisation by relevant bodies of UN or consent of the legitimate government of the target state.18 This definition reflects the fact that the UNSC does not rely on a doctrine of HI when authorising the use of force as it relies on the R2P doctrine. Its commitment to this principle was affirmed in Resolution 1674 where it reaffirmed a previous resolution on the protection of civilians in armed conflict.19 However, a significant weakness in this definition is that the ‘sole purpose’ must be to halt serious human rights abuses. Practically, as it is not always possible to ascertain whether states intervene for other interest, it is sufficient that halting gross violations of fundamental human rights the predominant intention. It is clear that it cannot be for self-defence as this is already permitted under Article 51 of the UN Charter.20 Accordingly, for the purpose of this piece HI is: the threat or use of force by a state or (group of states) with the predominant aim of halting or preventing genocide, war crimes, ethnic cleansing and crimes against humanity,21 without the permission of 15 UNGA ‘2005 World Summit Outcome’ UNGA Res A/60/1 (16 September 2005) UN Doc A/ Res/ 60/1, para 139. 16 JL Holzgrefe, ‘The Humanitarian debate’ in JL Holzgrefe and Robert O.Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (CUP February 2003) 18. 17 UNSC Res 1973 (17 March 2011) UN Doc. S/RES/1970, para 4. 18 John M Kabia, Humanitarian Intervention and Conflict Resolution in West Africa: From ECOMOG to ECOMIL (Ashgate 28 December 2008) 10. 19 UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674, para 4. 20 UN Charter (n 1) art 51. 21 UNGA ‘2005 World Summit Outcome’ UNGA Res A/60/1 (16 September 2005) UN Doc A/ Res/ 60/1, para 139.

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the government of the state within whose territory force is applied or authorisation by the UNSC.22 The use of force in this manner is upon deadlock within the UNSC and must be a method of last resort. This definition has been chosen as an amalgamation of the definitions explored above as well as the requirement of the use of force as the last resort under Chapter VII.23 Under Art 42 force can be authorised by the UNSC where other measures not involving force are inadequate.24 Additionally, the definition of HI given for the purpose of this piece also signifies a doctrine of HI that does not seek to override the UNSC as the primary body to authorise the use of force to protect populations but seeks to acknowledge and uphold this. 25 Having broadly outlined a definition of HI, I will then discuss whether this doctrine has any legal grounding in law and assess why there is a need for codification. Thereafter, I will consider a major impediment to codification which is the tension between state sovereignty and the protection of human rights and consider how these two concepts can be reconciled. I will then analyse the merits of different modes of codification and will suggest the most pragmatic form codification should take. Before concluding, I propose criteria for reform and analyse strengths and weaknesses that may arise. My proposal for reform is two-fold: the first part seeks to set out criteria for intervention in order to halt human rights abuses and the second seeks to remedy root causes of human rights abuses by encouraging the international community to address economic, social and political conditions that allow human rights abuses to thrive. These two facets help illustrate a genuine commitment to the preservation of human rights and protection of populations. 2. The Current State of the Law Prior to discussing the need for codification it is imperative to determine the legality of HI. This section provides an analysis of the law from a legal positivist perspective, which focuses on what international law is and separates it from what

22 Holzgrefe (n 16) 18. 23 UN Charter (n 1) ch VII. 24 Ibid art 42. 25 UNGA‘2005 World Summit Outcome’ UNGA Res A/60/1 (16 September 2005) UN Doc A/ Res/ 60/1, para 139.

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morality demands.26 According to this view the two relevant sources of international law are treaty and custom, without moral considerations.27 Relevant provisions from the treaty of the UN Charter, customary rules and prominent judgments from the International Court of Justice (ICJ) will be considered. As HI concerns the use of force, and as it is ‘forcible’ intervention, it is necessary to consider international law governing this area. Article 2(4) in the UN Charter stipulates a prohibition of the threat and use of force and is the fundamental principle in this area.28 It also constitutes one of the cornerstones of the UN Charter and modern legal order.29 Article 2(4) states that: ‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the united Nations’.30 This principle is also intrinsically linked with a respect for the sovereignty and independence of states as forcible action can deprive states of their equal rights, freedom, self-determination and independence.31 The importance of sovereign equality has been emphasised by the UNGA and it has also been stated that the purposes of the UN can only be implemented if states enjoy sovereign equality and fully comply with requirements of this principle, such as that stated in Art 2(4).32 However, it may appear as though HI does not contravene the territorial integrity or political independence of any state but particularly seeks to uphold these attributes and for this reason it is considered as not breaching Art 2(4). This narrow interpretation has been refuted by the ICJ, which has attributed serious abuses to this

26 Pattison (n 6) 45. 27 ibid 46. 28 Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v USA) (Merits) [1986] ICJ Rep 14, para 188. 29 Armed activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Merits) [2005] ICJ Rep 168, para 148. 30 UN Charter (n 1) art 2(4). 31 UNGA ‘The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations’ UNGA Res A/25/2625 (XXV) (24 October 1970) UN Doc A/RES/25/2625, 123. 32 ibid.

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narrowly construed interpretation of Article 2(4).33 The travaux préparatoires also clarifies that the wording of this provision was not to restrict the comprehensive nature of the prohibition but instead it signifies attempts to clarify it.34 Additionally, the conclusion adopted in the Report of Rapporteur of Committee 1 to Commission I of the UN Conference on International organisation, stated that ‘the unilateral use of force or similar coercive measure is not authorised or admitted.’35 This gives an indication of the attitude of states in the formation of the Charter and does not show any intention to make unilateral intervention an exception to the general prohibition of the use of force. Therefore, prima facie, Article 2(4) does not advocate a right of HI and it is apparent that HI is not compatible with the intention behind which the parties formulated this provision. However, Franck asserts that this ‘highly minded resolve of Article 2(4) mocks us from its grave as the charter itself provides enough exceptions and ambiguities to open up the rule to deadly erosion’, or in other words, Article 2(4) is redundant.36 There are two exceptions to the prohibition on the use of force; firstly, for individual or collective self-defence under Article 51 and,37 secondly, where the UNSC authorises the use of force under Article 42 to restore international peace and security. 38

Article 51 states that there may be an exception to the general prohibition of the use and threat of force on grounds of individual or collective self-defence if armed attack occurs against a member state of the UN.39 Even though states can use force as self-defence, Article 51 also requires that measures should be reported to the UNSC and suggests that a right to self defence may be curtailed where the UNSC takes necessary measures to maintain peace and security – this provides clear evidence that the UNSC is the central body in overseeing the use of force.40 Grey supports this view, stating that the UN Charter did not only aim to centralise the use of force under UN control but also sought to give the UNSC the right to terminate a right to 33 Corfu Channel (UK v Albania) (Merits) [1949] ICJ Reports 4, para 34. 34 Sean Murphy, Humanitarian Intervention: The United Nations in an Evolving world order (University of Pennsylvania Press, Pennsylvania 1996) 71. 35 UN, ‘Report of Rapporteur of Committee I to Commission I’ (June 9,1945) UN Doc 885 1/1/34 6 UNCIO Docs 387, 400. 36 Thomas M Franck, ‘Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States’ (1970) 64 Am.J.Int’l L. 809, 809. 37 UN Charter (n 1) art 51. 38 ibid art 42 39 ibid art 51. 40 ibid.

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self-defence.41 Putting this into perspective, a doctrine of HI, which permits forcible intervention outside the UNSC clearly conflicts the Charter’s aims to centralise the use of force under UNSC control. The Nicaragua case also confirmed that ‘states do not have a right of ‘collective’ armed response to acts which do not constitute an armed attack’.42 In cases where states intervene for humanitarian purposes under HI, this is not a response to armed attack against the intervening state or states and for this reason self-defence cannot justify HI. On the other hand, Article 42 states that the UNSC may take enforcement action under its authority and no enforcement action can be taken without the authorisation of the UNSC.43 This provision endorses the use of force as a last resort when measures not involving the use of force are ‘inadequate’.44 The purpose of the use of force in this way is to ‘restore international peace and security’.45 An example of the authorisation of force under this article is in the case of Somalia where the UNSC authorised state members of the African Union (AU) to take necessary action to carry out an existing mandate.46 Part of this mandate was to protect Transitional Federal Institutions to help them carry out their functions of government.47 With the UNSC being the primary body to authorise the use of force to restore international peace and security, it is evident that HI clearly offends Article 42 as it involves force not authorised by the UNSC. Having seen how the two exceptions clearly prove the illegality of HI, it is evident that Article 2(4) has not been made redundant. Another source of international law are customary rules,48 and since it is clear that HI is not compatible with Article 2(4), one could consider whether this Article does not prohibit unilateral action which can be justified in customary international law where the ‘collective security regime envisaged in the Charter fails to address a crisis’.49 For a new customary rule to be formed the acts concerned must amount to 41 Christine Gray, International Law and the Use of Force (2nd edn, OUP Oxford 2008) 124-125. 42 Nicaragua (n 28) para 211. 43 UN Charter (n 1) art 42. 44 ibid. 45 ibid. 46 UNSC Res 1772 (20 August 2007) UN Doc S/RES/1772, para 9. 47 ibid para 9(b). 48 Martin Dixon, Robert McCorquodale and Sarah Williams, Cases and Materials on International Law (OUP 2011) 18. 49 Simon Chesterman, Just War or Peace? Humanitarian Intervention and International Law (1st edn, OUP 2001) 47.

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settled practice and must be accompanied by the opinio juris sive necessitatis.50 A salient example of this is the prohibition of use of force.51 In relation to customary law, the ICJ has deemed it sufficient that the conduct of states should generally be convergent to such rules and instances of state conduct that contravenes a rule should generally be treated as a breach of that rule, not as indications of a new rule.52 Complete uniformity of practice is not required, substantial uniformity is sufficient.53 However, the Court held that acts must not only amount to settled practice but they must also be such, or be carried out in such a way, as to give evidence to a belief that this practice is rendered obligatory by the existence of a rule of law requiring it and this is known as opinio juris.54 In the Nicaragua case, the Court considered the approval of the parties given to certain UNGA resolutions,55 namely the Friendly Relations Declaration Resolution,56 which gave evidence to opinio juris regarding the prohibition of the use of force. In relation to state practice, there have been interventions that have appeared to have humanitarian purposes. Intervention by India in East Pakistan has been deemed to be a good example of HI.57 In 1971, India alleged that Pakistan had violated minimum standards of human rights in East Bengal by killing and imprisoning large numbers of the population.58 Consequently, there was a surge of refugees fleeing to India due to a denied right of self-determination.59 India responded using large-scale military force in the area, which enabled the East Bengal people to establish an independent state.60 Within the UNSC, an Indian representative said that India has nothing but the purest motives and intentions to rescue the East Bengal people from their suffering.61 Though it initially asserted humanitarian motives, it justified its actions 50 North Sea Continental Shelf (Federal Republic of Germany v Netherlands; Federal Republic of Germany v Denmark) (Judgment) [1969] ICJ Rep 3, para 77. 51 Nicaragua (n 28) para 185. 52 ibid 186. 53 Fisheries (UK v Norway) [1951] ICJ Rep 116, 131. 54 North Sea Continental Shelf (n 50) para 77. 55 Nicaragua (n 28) para 188. 56 UNGA ‘The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations’ UNGA Res A/25/2625 (XXV) (24 October 1970) UN Doc A/RES/25/2625. 57 Fernando R. Tesón, Humanitarian Intervention: An Inquiry into law and morality (2nd edn, Transnational Publishers 1997) 208. 58 Thomas M Franck and Nigel S Rodley, ‘After Bangladesh: The law of Humanitarian intervention by military force’ (1973) 67(2) Am J Int’l L 275, 275. 59 ibid. 60 ibid. 61 UNSC Verbatim Record (4 December 1971) UN Doc S/PV/1606, para 86.

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under self-defence.62 By relying on this defence, it does not illustrate that India had intervened based on a legal rule of HI and that their action was obligatory according to this rule. This therefore does show that there is inadequate opinio juris indicating a customary rule of HI. Interventions in Uganda by Tanzania (1979) and the Vietnamese invasion in Cambodia (1979) similarly show possible examples of humanitarian intervention but were justified under self-defence.63 Another prominent example is the intervention that took place in Kosovo undertaken by North Atlantic Treaty Organisation (NATO) to halt the terrorist activities by the Kosovo liberation Army and repressive action by the Federal Republic of Yugoslavia (FRY) and Serbian police.64 The Canadian Ambassador claimed that humanitarian considerations underpinned their action: ‘We cannot simply stand by while innocents are murdered, an entire population is displaced … [and] villages are burned’.65 The UK Commonwealth Office held that an intervention could also be justified on grounds of overwhelming humanitarian necessity without a UNSC Resolution.66 The UK representatives also stated that the action taken was legal but did not refer to any specific legal provisions to prove legality.67 After Yugoslavia brought a case before the ICJ against NATO states, accusing them of illegal use of force most governments did not openly rely on HI as a defence except Belgium.68 The failure to clearly rely on a legal right of HI to legitimise the use of force demonstrates inadequate opinio juris. However, Tesón contends that there isn’t a lack of opinio juris and says what really matters is what governments do as opposed to what they say.69 This view implies that the analysis of state practice relies exclusively on language of government leaders and appears to do away with the notion of opinio juris.70 Tesón also takes the view that we should interpret custom and treaty according to the best moral theory of the purposes of international law;71 however this brings about notions of what the law should be rather than what it is. Moreover, The Group of 77 has rejected ‘so-called 62 James Crawford, Brownlie’s principles of public international law (8th edn, OUP 2012) 753. 63 ibid. 64 Christopher Greenwood, ‘Humanitarian Intervention: the case of Kosovo’s in Jarna Petman, Martti Koskenniemi (eds.), Finnish Yearbook of International Law (Kluwer Law International 2002) 146. 65 UNSC Verbatim Record (24 March 1999) UN Doc S/PV/3988, 6. 66 Greenwood (n 64) 157. 67 Crawford (n 62) 753. 68 Legality of Use of Force (provisional measures) (pleadings of Belgium) [1999] ICJ, CR 99/15. 69 Tesón (n 57) 192. 70 Chesterman (n 49) 85. 71 James Pattison, ‘Humanitarian Intervention and International Law: The Moral Importance of an Intervener’s Legal Status’ (2007) 10(3) Critical Review of International Social and Political Philosophy 301, 305.

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“right” of HI, which has no legal basis in the UN Charter or in the general principles of international law which indicates a general attitude within the international community refuting a right of HI.72 From these examples, it is difficult to conclude that there is a customary rule to justify a breach of Art 2(4) based on a right of HI. On the other hand, Professor Falk claimed that the renunciation of unilateral intervention does not substitute a policy of non-intervention; but rather, involves the development of collective intervention.73 The development of collective action for humanitarian purposes may be illustrated in the R2P doctrine.74 It was acknowledged that ‘each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity’.75 This responsibility entails the ‘prevention of such crimes…through appropriate and necessary means’.76 In addition to this, the role of the international community is to ‘encourage and help states exercise this responsibility’.77 In the event that states do not adequately protect their population, the international community through the UN may ‘use appropriate diplomatic, humanitarian and other peaceful means to help protect populations’.78 Action may be taken in a timely manner in accordance with the Charter, including Chapter VII where peaceful means are inadequate and national authorities manifestly fail to protect their populations’.79 This is distinct from the doctrine of HI as force is authorised through the UNSC preventing states from acting on their own accord. Choosing not to include a doctrine of ‘HI’ also bolsters support for the view that a right of HI is illegal within the international law. The UNSC invoked the R2P doctrine while authorising member states to take ‘all necessary measures to protect civilians from repressive government forces in Libya.80 In Resolution 1970, the UNSC invoked the R2P doctrine and highlighted that the increasing and systematic attacks against civilians may amount to crimes against 72 The Group of 77, ‘Declaration on the Occasion of the Twenty-third annual Ministerial Meeting of the Group of 77’ (24 September 1999) <http://www.g77.org/doc/Decl1999.html> accessed 22 February 2014, para 69. 73 Richard Falk, ‘The Legitimacy of Legislative Intervention by the United Nations’ in Roger Fisher and Roland J. Stanger (eds.) Essays on Intervention (Ohio State University Press 1964) 36. 74 UNGA‘2005 World Summit Outcome’ UNGA Res A/60/1 (16 September 2005) UN Doc A/ RES/ 60/1, paras 138-139. 75 ibid para 138. 76 ibid. 77 ibid para 139. 78 ibid. 79 ibid. 80 UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973, para 4.

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humanity.81 This resolution imposed sanctions including an arms embargo on the Libyan government; however, the situation escalated resulting in UNSC Resolution 1973 being authorised.82 Though Russia and China abstained and it is ‘believed that they could not legitimise inaction in the face of mass atrocities’.83 Whilst the abstinence of states in this case did not preclude intervention, there have been instances relating to Syria where the lack of agreement between the permanent members has precluded the possibility of forcible intervention.84 In response to the escalation of violence in Syria, the UNSC condemned the human rights abuses and use of force against civilians while beseeching the Syrian government to comply with their obligations under international law.85 Further attempts to issue a resolution that could have possibly opened the door for military intervention have been stifled by Russia and China.86 Russia stated that their ‘emphasis on the non-acceptability of military intervention had not been taken into account’.87 This therefore highlights limitations resulting from the use of force being primarily vested in the hands of the UNSC and perhaps it is timely to consider the need for a codification of a doctrine of HI to overcome the difficulties that arise in relation to the UNSC authorising the use of force. 3. Why Should There be Codification? With no legal basis for the doctrine of HI and the failure of the UNSC to take military action to protect civilians in Syria, a codification of a doctrine of HI may be necessary. This will symbolise a commitment to protecting populations within the international community. Goodman states that a key concern regarding the codification of a doctrine of unilateral intervention is that it could be used as a pretext to wage wars for ulterior motives.88 Brownlie states that a rule allowing HI rather than collective action through the UN is a ‘license to vigilantes and opportunists to resort to hegemonial interven-

81 UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970, 1. 82 UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973, para 4. 83 Alex Bellamy and Paul Williams,‘The new politics of protection? Côte d’Ivoire, Libya and the responsibility to protect’ (2011) 87(4) International Affairs 825, 844. 84 UN Press Release (19 July 2012) UN Doc SC/10714. 85 UN Press Release (3 August 2011) UN Doc SC/10352. 86 UN Press Release (4 October 2011) UN Doc SC/10403. 87 ibid per Vitaly Churkin. 88 Ryan Goodman, ‘Humanitarian Intervention and Pretexts for War’ (2006) 100 The American Journal of International Law 100-141, 107.

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tion’.89 However, there have already been incidents where states rely on prescribed exceptions to the use of force even though their acts are illegal. An example of this is seen in the Nicaragua case where the USA claimed that armed attacks carried out on Nicaragua were for collective self-defence. The ICJ held the conduct of the USA to be in breach of the customary law prohibiting the use of force against another state.90 This illustrates that no rule is exempt from abuse and for this reason it is necessary that the UNSC has power to take enforcement action under Chapter VII of the UN Charter when states’ actions contravene stipulated rules.91 There are considerable benefits that may be brought about, such as the strengthening of international law, by having a clear criteria setting out an objective standard. There have already been incidents where artificial justifications and interpretations of international law have been used to justify intervention that was de jure illegal. A prominent example of this is the intervention by NATO in Kosovo to halt to the terrorist activities by the Kosovo Liberation Army and repressive action by the FRY army and Serbian police.92 Prior to intervention, the UNSC had deemed Kosovo as being a threat to international peace and security, though intervention was not authorised within the UNSC.93 Subsequent to intervention, the Russian Federation proposed a resolution to declare the NATO action as a flagrant violation of the UN Charter in particular Articles 2(4), 24 and 53.94 However, this was rejected by twelve out of fifteen members of the Council,95 which shows the reluctance of many states to formerly criticise the intervention in Kosovo. Though, this is not surprising due to the affiliation some states, in the UNSC, had with NATO. The Kosovo experience affirmed for many the notion that sometimes HI without UNSC authorisation is morally and politically justified.96 The Independent International Commission on Kosovo issued a report in 2000 addressing the issue of the legality and legitimacy of the NATO military intervention, which was not authorised by the UNSC.97 It was concluded by the Commission that 89 Ian Brownlie ‘Humanitarian Intervention’ in John Norton Moore (ed), Law and Civil War in the Modern World (John Hopkins University Press 1974) 217-28. 90 Nicaragua (n 28) 292. 91 UN Charter (n 1) ch VII. 92 Greenwood (n 64) 146. 93 UNSC Res 1203 (24 October 1998) UN Doc S/RES/1203. 94 UN Press Release (26 March 1999) UN Doc SC/6659. 95 Greenwood (n 64) 152. 96 Holzgrefe and Keohane (n 16) 255. 97 Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (Oxford University Press 2000).

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this intervention was legitimate but not legal.98 It was held to be illegal because it did not receive prior approval from the UNSC, however, it was justified because all diplomatic avenues had been exhausted and intervention was for the purpose of liberating civilians from oppressive rule.99 In light of international law, we see a general acknowledgment of the de jure illegality of intervention outside the UNSC for humanitarian purposes. However, the Commission did also consider the growing importance of protecting human rights. It was held that ‘the moral imperative of protecting vulnerable people in an increasingly globalised world should not be lightly cast aside by adopting a legalistic view of international responses to humanitarian catastrophes’.100 This is indicative of growing attitudes within the international community that seek to protect populations due to a moral compulsion that makes intervention legitimate. However, there is a danger posed by such reasoning, in that claims of legitimate intervention outside the UNSC may be based on subjective views on morality. Codification of a doctrine of HI may resolve such a problem by setting out clear legitimate grounds for HI agreed by the international community. Additionally, the lack of formal criticism within the UNSC in the case of Kosovo may send out a message that there are exceptions that can justify the use of force for reasons beyond the justifications in the Charter. This does pose a real threat, as condoning behaviour whether directly or indirectly, without any clear doctrine or codification may result in future instances where Article 2(4) is made redundant. Reisman illustrates this dilemma: In circumstances of extreme gravity, the world community, by its lack of adverse reaction, in practice condones conduct which, although a formal breach of positive legal norms, appears acceptable because of higher motives of a moral, political, humanitarian, or other nature.101 It may also create the false impression that the illegality of intervention is determined on a case-by-case basis without setting out a clear limit to these exceptions, 98 ibid 4. 99 ibid. 100 ibid 176. 101 Michael Reisman, ‘Humanitarian intervention to protect the Ibos’ in Richard B. Lillich (ed.) Humanitarian intervention and the United Nations (University Press of Virginia, 1973) 167.

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albeit, one can contend that such contraventions of the law do not weaken it due to the fact that such deviations are accompanied with justifications, which elucidates an acceptance of the prohibition of the use of force. By codifying a doctrine of HI clear criteria can be agreed by states as to what can be legitimate grounds for intervention and will therefore allow the international community to decipher what intervention should be deemed as abusive or exploitative and from this the UNSC can enforce sanctions. These criteria would also be formulated with an acknowledgement that the general prohibition of the use of force is customary law and will therefore not corrode the legal force of Article 2(4). In addition, codification will create a climate where states that are genuinely concerned with ensuring peace and international security as well as preserving human rights do not encounter the stigma that comes with military intervention outside the UNSC. This issue could arise in cases such as Syria where resolutions have been drafted stating the possibility of the use of military force but were opposed by Russia and China.102 The action called for was more diplomatic and based on negotiation, despite recently reaffirming the threat posed to international peace and security due to the proliferation of chemical weapons and condemning the severe human rights abuses.103 Due to the lack of consensus regarding intervention states may be deterred from intervening to halt gross violations of human rights and attempting to bring about peace in the region. Though the lack of codification may deter genuine prospective interveners it may also encourage interventions such as that in Kosovo with the hope that a positive outcome results in commendation within the international community. Tom Farer opines that the prospective intervener ‘knows that, despite his motives, he breaches the law, but hopes that the international community will remain silent and thus implicitly condone his intervention’.104 However, where intervention may be discouraged due to the de jure illegality of HI, the international community may be perceived as encouraging the abuse of human rights. For example the Human Rights Watch has vocalised concern about how the refusal to intervene in Syria can be seen as permitting gross human rights abuses.105 102 UN Press Release (4 October 2011) UN Doc SC/10403. 103 UNSC Res 2118 (27 September 2013) UN Doc S/RES/2118, para 2. 104 TJ Farer, Humanitarian Intervention: The view from Charlottesville’ in Richard B. Lillich (ed) Humanitarian Intervention and the United Nations (University Press of Virginia 1973) 149. 105 BBC, ‘Syria accused of torture and 11,000 executions’ (BBC News, 21 January 2014) < http://www. bbc.co.uk/news/world-middle-east-25822571> accessed 22 February 2014.

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While the intervention in Kosovo was subject to criticism particularly by Russia, it did however lead to a settlement being drawn up.106 In light of this, if there were to be a codification of HI setting out criteria for legitimate intervention outside the UNSC, it may be clear that human rights abuses threatening international security will not be tolerated. With the threat of any state intervening, providing that the objective standard is met, governments may be more willing to deal with their state’s affairs promptly. It may also deter potential abusers from misusing power and causing instability within their state. In addition, the use of HI in this way may also be used, particularly in cases such as Syria, to show that the use of chemical weapons will not be overlooked. In this vein, a codification of HI may also help resolve global pressing matters such as the misuse of small arms and light weapons which do pose threats to peace and has been subject of UNSC resolution.107 In this resolution great concern was expressed for the ‘illicit transfer, destabilising accumulation and misuse of small arms and light weapons’ which ‘continued to cause significant loss of life around the world’.108 One could argue that there has been more of an emphasis on justice and holding perpetrators of human rights abuses to account. This is illustrated by the readiness to refer governments to the International Criminal Court (ICC) before taking forcible action; this was done as a response to the repressive measures taken by the Libyan government.109 While this may be seen as a way of getting justice for victims it may put more emphasis on punishing perpetrators of grave acts rather than preventing the violation of rights. One may argue that the growing significance of these courts could make the UNSC lax in intervening militarily. This delay in justice for the victims through the courts could also signify a denial of justice. It is not sufficient for the UNSC to encourage punishment for crimes against humanity but rather it must step in to prevent these crimes if it is to reflect the commitment to human rights embodied in the R2P. The codification of a doctrine of HI will also reaffirm the significance of the preservation of human rights as stipulated in Art 55.110 This is also reflected in the judgment of the ICJ in the case of Legal Consequences for States of the Continued Presence of South Africa in Namibia where it was stated that the denial of fundamen106 UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244, para 11. 107 UNSC Res 2117 (26 September 2013) S/RES/2117, 1. 108 ibid. 109 UNSC Res 1973 (17 March 2011) S/RES/1973, 2. 110 UN Charter (n 1) art 55.

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tal human rights is a flagrant violation of the purpose and principles of the UN Charter.111 More importantly, the World Summit Outcome Document also gives evidence to recognition of the importance of respect for all human rights. However, states have vocalised concerns about the veto powers of the permanent members of UNSC and take the view that such powers should not be unlimited.112 The power of the veto has potential to hamper the effectiveness of the R2P doctrine and this may accentuate the need for a doctrine of HI to circumvent such difficulty. The benefit of this codification includes pragmatic limits being set out as to how practical action can be taken by states to give effect to the purpose of the UN Charter, therefore staying true to the purpose and spirit of the Charter. By doing so, the importance of safeguarding individuals from atrocities may be adequately reflected in state practice. In conclusion, there are benefits that arise from codification where intervention takes place according to particular criteria, rather than the lack of condemnation from the UNSC making international law appear unprincipled. However, the success of codification is also contingent on the form it takes. 4. Barriers to codification: The Tension between State Sovereignty and Humanitarian Intervention A doctrine of HI presents an insurmountable dilemma in global governance and this has been characterised by the tension between the primacy of state sovereignty and protection of fundamental human rights.113 However, due to a concept of sovereignty that is compatible with the protection of human rights, as seen under the R2P doctrine, one could contend that tensions now exist between two notions of sovereignty. It has been held that sovereignty has two dimensions, firstly within a state where a Sovereign has power to make law and its validation does not depend on a higher power.114 On the other hand there is external sovereignty, which is sovereignty in international law or independence and shields states from powers outside their ter111 [1971] ICJ Rep 16, para 131. 112 UN Press Release (29 October 2013) UN Doc SC/11164. 113 Alexander Volsky, ‘Reconciling Human Rights and State Sovereignty, Justice and the law, in humanitarian interventions’ (2007) 3(1) International Public Policy Review 40, 40. 114 Anne Peters, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20(3) The European Journal of International Law 513, 515.

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ritory.115 Article 2(7) of the UN Charter provides evidence of this external notion of sovereignty where it prohibits the UN from intervening in matters that are within the domestic jurisdiction of any state; though this does not undermine the measures the UNSC can take under Chapter VII.116 Respect for territorial sovereignty has been held to be an essential foundation of international relations and such respect is related to this principle of non-intervention which is a customary rule.117A corollary of state sovereignty is the belief that states are equal: this can be deduced from the fact that independent states are equally subject to international law but not bound by the laws of another state. Accordingly, a small Republic is no less a sovereign state than the most powerful kingdom.118 The Friendly Relations Declaration states that sovereign equality includes each state enjoying the rights inherent in full sovereignty and the right to freely choose and develop its political, social, economic and cultural systems.119 Under a doctrine of HI states will be able to decry other states regarding the treatment of their citizens and this would offend the principle of sovereignty. Contrary to this traditional notion of sovereignty where states are completely free to develop their political systems, a doctrine of HI would undermine the right of states to regulate their internal affairs without the intervention from external forces, it may also compel states to comply with objective standards that they may not necessarily agree to. Conversely, this view of sovereignty can be seen to bring about peaceful co-existence. As states acknowledge the equal status given to other states, force is prohibited and moral principles of each state are not questioned. China’s response to a draft UNSC resolution aiming to put pressure on the Syrian government illustrates support of this notion of sovereignty. The resolution would have urged for ‘an inclusive Syrian-led political process conducted in an environment free from violence, fear, intimidation and extremism’.120 The representative for China emphasised the need for the ‘country’s sovereignty, independence and territorial’s integrity’ to be respected.121 Russia also voted against the resolution as it believed the draft sent out an ‘unbal-

115 ibid. 116 UN Charter (n 1) art 2(7). 117 Corfu Channel (n 33) 35. 118 Bruno Simma, Daniel- Erasmus Khan, Georg Nolte, Andreas Paulua and Nikolai Wessendorf (ed.) The Charter of the United Nations: A Commentary (3rd edn, OUP 2012) 141. 119 UNGA ‘The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations’ UNGA Res A/25/2625 (XXV) (24 October 1970) UN Doc A/RES/25/2625, 124. 120 UN Press Release (4 February 2012) UN Doc SC/10536. 121 ibid.

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anced’ message to Syria.122 In light of this we see how states such as China and Russia on particular occasions are reluctant to be extremely intrusive in matters within other states due to respect for state sovereignty as set out in the Charter. However, the UN Charter expresses the importance of the UN promoting universal respect for and observance of human rights and fundamental freedoms for all.123 If HI contravenes the principle of state sovereignty then how can we respond to situations where the UNSC fails to agree to take military action in a timely manner to halt gross violations of human rights? The doctrine of the R2P signifies a changing idea of sovereignty that has been accepted within the international community. It gives evidence to a principle of sovereignty that is compatible with the use of force to protect populations and halt gross human rights violations. This is illustrated in the UNSC resolution 1674 which affirmed the ‘respect for the sovereignty of all states’124 as well as a duty to protect ‘populations from genocide, war crimes, ethnic cleansing and crimes against humanity’.125 Andrew Cottey confirms that the R2P doctrine illustrates a shift in balance of international opinion, as there is increasing acknowledgment that sovereignty cannot be seen in ‘absolutist terms’.126 It has also been underpinned by a readiness to accept that this view of state sovereignty may be defended on certain occasions.127 A corollary of this is that states are not entirely free from the use of force; enjoyment of non-intervention under this doctrine is intrinsically linked to states’ protection of their population. Reisman states that under the modern concept of sovereignty, international law still protects sovereignty but the sovereignty it protects is the people’s sovereignty not the sovereign’s sovereignty.128 According to R2P, protecting the people’s sovereignty includes acting for the betterment of the safety and welfare of populations and protecting them from gross human rights violations where the government of the day neglects such responsibility. Subsequently, sovereignty can no longer act as a shield to the suppression of the people’s sovereignty from external rebuke and remedy.129 This can be contrasted with an absolute view of sovereignty where states can freely violate 122 ibid. 123 UN Charter (n 1) art 55. 124 UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674, 1. 125 ibid 4. 126 Pattison (n 6) 72. 127 ibid. 128 Michael W Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’ 84 Am. J. Int’l L. 866 (1990) 866, 869. 129 ibid 872.

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human rights with impunity.130 One could argue that it is these two concepts of sovereignty that underlie the tension within the UNSC regarding intervention on particular occasions. Where states such as Russia and China are more reluctant to open the door to military force, states such as the UK have been more open to consider the use of force in the event of non-compliance by the Syrian government. With an increasing acknowledgment of a qualified right of non-interference as illustrated in the adoption of the World Outcome summit, the major impediment to a doctrine of HI may not be state sovereignty but peace. Krisch supports this view and states that the real contention is between peace and human rights and this may result from force not being authorised within the UNSC.131 The use of force within the UN Charter can be held to be predicated on the primacy of peace and the Charter does seek to assign the role of maintaining and restoring peace through the use of force to the UNSC.132 Concerns have been raised that a doctrine of HI may disrupt peace due to states using it as a pretext for war;133 as it would undermine the aim of the UN Charter, which is to ‘save succeeding generations from the scourge of war’.134 Conversely, one could argue that a doctrine of HI does seek to bring about peace where there is growing belief that force may be necessary to restore peace and security in particular regions due to gross human rights violations. If we prevent a doctrine of HI being codified for the sake of peace how can states adequately bring about peace where the UN fails to agree to use force when necessary? In conclusion, the tension between a doctrine of HI and state sovereignty may not be the major impediment to a codification of state sovereignty. A major barrier to codification may be the danger posed to peace by granting states the power to intervene to prevent or halt gross human rights violations without the use of force being authorised by the UNSC. However, considerable benefits could be brought about in terms of peace restoration if states intervened according to agreed criteria where the UNSC fails to reach an agreement on the use of force.

130 Pattison (n 6) 67. 131 Nico Krisch ‘Legality, Morality and the Dilemma of Humanitarian intervention after Kosovo’ (2002) 13 EJIL 323, 323. 132 UN Charter (n 1) art 24. 133 Goodman (n 88) 107. 134 UN Charter (n 1) Preamble.

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5. Proposal for Reform A. Form of Codification In order to determine how such reform can be implemented, one must determine the various forms codification can take and analyse the pragmatism of each form. In this section I seek to consider three types of codification, namely an amendment to the UN Charter, a multilateral treaty and a UNGA resolution. Article 108 of the UN Charter governs the amendment of any single provision.135 An amendment to the Charter can only come into force when it has been adopted by a vote of two thirds of the members of the UNGA and ratified by two thirds of the United Nations, including all the permanent members of the UNSC.136 This article governs the ordinary amendment procedure aimed at the change of a single provision and requires no special administrative procedure.137 Therefore in order to amend Article 51, which stipulates an exception to the use of force to include a doctrine of HI, these requirements would have to be met. The benefit of codifying a doctrine of HI in such way would result in a clear identification of the doctrine of HI as having legal status. There will be no ambiguity as to the presence of the doctrine in international law if it is written in the Charter. It will also bind each member of the UN even if the state concerned did not consent to the amendment.138 While this may strengthen the legal force of HI, it is unlikely that such codification will be approved. Firstly, the process which this codification wishes to circumvent, notably the veto within the UNSC, determines whether such a doctrine will be enshrined in the Charter. If states such as Russia and China have been hesitant to authorise military intervention within the UNSC, it is highly optimistic to expect that they will not veto such a decision being codified in the UN Charter. As Russia has already condemned the practice of NATO in Kosovo,139 it does not seem probable that it will support the enshrining of an interventionist doctrine in the UN Charter. The difficulty in amending the charter can be evidenced in the number of amendments to the Charter since 1945. There have only been three occasions where an

135 136 137 138 139

UN Charter (n 1) art 108. ibid. Simma et al (n 118) 2202. ibid 2215. UN Press Release (26 March 1999) UN Doc SC/6659.

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amendment has been successfully made under Article 108.140 Whilst it can be argued that a reform of the UNSC may enable HI, the use of the veto in decisions relating to amendments would make reform difficult as all the permanent members of the UNSC would have to agree on it. It is highly unlikely that the UNSC would advocate reform in a way that may result in them being victims of HI. Therefore, this piece advocates a codification of the doctrine of HI as opposed to reform of the composition of the UNSC. In light of the difficulty of codification in the UN Charter, particularly with gaining unanimity amongst the permanent members of the UNSC a better form of codification could be a multilateral treaty created specifically to codify a doctrine of HI. A multilateral treaty is an international agreement concluded between more than two states in written form and governed by international law.141 A party to a treaty is a state which has consented to be bound by the treaty.142 Formal multilateral treaties with a vast number of parties may often be called ‘conventions’ and these instruments are usually agreed under the auspices of an international organisation.143 A mutually accepted doctrine of HI could be codified in a multilateral treaty, as a result of states coming together and agreeing the scope of the doctrine to which they mutually consent to. By agreeing on such terms states give prior consent to intervention if a particular objective standard is met. Professor Stanley Hoffman supports the idea of a treaty between states where they ‘pre-authorise military interventions against themselves’.144 This will not only enable states to intervene where a humanitarian crisis surfaces but may also hinder the emergence of such crises.145 By member states coming together to agree terms, it is more likely that they will ratify it on terms that have been decided collectively. However, a significant weakness brought about by a multilateral treaty, is that it only brings about an obligation upon states that are a party to it.146 States that are opposed to the doctrine of HI may be reluctant to cooperate in forming the terms of the treaty and also ratifying it. This could result in the governments that are infamous 140 Simma et al (n 118) 2217. 141 Vienna Convention on the Law of Treaties (Vienna Convention) (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 2. 142 ibid. 143 United Nations Treaty Sections, Final Clauses of Multilateral Treaties: Handbook (United Nations Publications 2003) 121. 144 Alexandar Jokic, Humanitarian Intervention: Moral and Philosophical Issues (Broadview Press 2003) 98. 145 ibid. 146 Vienna Convention (n 141) art 26.

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for condoning and perpetuating gross human rights abuses, not ratifying the treaty and would water down the effectiveness of the treaty. If all states that have a genuine concern for human rights ratify the treaty, the treaty may not serve its purpose because there will be no need for intervention in these states. However, states where there are ripe conditions for intervention may not consent to it. Conversely, carrots can be dangled to entice states and sticks used to ensure they fulfil obligations. In practice, this could result in benefits being used to get states to cooperate in drafting and ratifying while also ensuring that sanctions are applied when states fail to comply with obligations in the treaty. Though, it must be clear that states ratify treaties out of their free will and should benefits attached to the treaty be deemed as coercive, consent is vitiated.147 If, for example, economic benefits are attached, Less Economically Developed Countries (LEDCs) may feel coerced to ratify the treaty. More importantly, this method of codification may fail due to a principle formulated in Art 53 of the Vienna Convention which provides that ‘a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’.148 A peremptory norm, also known as jus cogens is a norm accepted and recognised by the international community of states as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.149 HI is not a legal norm or rule in international law. Therefore, in light of the provision in the Vienna Convention, a multilateral treaty codifying HI may be void ab initio and may not be legally enforceable. This results from the illegal status of HI, which contravenes the prohibition of the use of force which is a peremptory norm. This limitation therefore weakens the enforceability of a multilateral treaty and may not provide sufficient grounding for HI. In addition, it is not necessarily guaranteed that states will come together to agree on this doctrine. A UNGA resolution could be seen as a more realistic alternative, though it does not have legal force unlike the UN Charter or a multilateral treaty. A UNGA resolution has no binding effect in relation to international peace and security, as matters involving gross violations of human rights often pertain to matters of international peace and security a UNGA resolution on HI would therefore not be legally enforceable or 147 148 149

ibid art 51 ibid art 53. ibid.

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binding.150 Whilst its non-binding nature and relative weaker legal force compared to codification in the UN Charter could be seen as a weakness, it could be seen as beneficial as this form of codification is more likely to gain support than the other methods. The aim of this resolution would not be to legalise HI but would quell ambiguities around the issue of the legitimacy of HI. There would be a clear criteria identified as to what legitimate intervention is and this would be aimed at deterring illegitimate intervention when the UNSC fails to act in a timely manner. Equally, it would also provide clear grounds for intervention by states that have a genuine concern for human rights. Additionally, voting requirements are also less stringent than the requirements for amending the UN Charter. The problems arising from the veto power of states within the UNSC is also avoided. According to Article 18, the decisions of the UNGA on important questions shall be made by a two-thirds majority of the members present and voting.151 The World Summit Outcome Document was adopted by the UNGA, signifying shifting attitudes to intervention to protect populations. This can be contrasted with the rejection of Resolution 46/182 aimed at strengthening the coordination of humanitarian assistance, where there was opposition particularly from Third World states.152 Growing concern shown for populations under the R2P doctrine could increase likelihood of codification of HI in line with the doctrine. Before the resolution is drafted there could be an open forum where states can make their concerns known, in order for them to reach a compromise. The International Law Commission (ILC) could also instigate formulating the resolution as it consists of thirty four distinguished legal scholars and jurists elected by the UNGA.153 Due to the diverse backgrounds of these personnel, the ILC may be able to deal adequately with political and legal concerns that may surface during an open forum. The ILC should play a pivotal role in codifying a doctrine of HI due to its function of promoting ‘the progressive development of international law and its codification’.154 By drafting a resolution considerate of political and legal reservations, the likelihood of adoption could be high.

150 Marko Divac Öberg, ‘The Legal Effects of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’ (2006) 16(5) The European Journal of International Law 879, 884. 151 UN Charter (n 1) art 18. 152 UNGA ‘Strengthening of the coordination of humanitarian emergency assistance of the United Nations’ UNGA Res 46/182 (19 December (1991) UN Doc A/Res/46/182. 153 Walter F Baber and Robert V Bartlett, Global Democracy and sustainable Jurisprudence: Deliberative Environmental Law (Massachusetts Institute of Technology 2009) 157. 154 UNGA ‘Establishment of an International Law Commission’ UNGA Res 174(II) (21 November 1947) UN Doc A/Res/174 (II), art 1.

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In conclusion, the best form of codification would be a UNGA resolution, as this form of codification, while not having the legal force of the UN Charter provision, can be effective. It may act as a stepping stone to codification in the UN Charter if it results in a change in relation between states that is generally accepted. B. Proposed Criteria for Humanitarian Intervention Due to contentions surrounding a doctrine of HI, be it due to a traditional notion of sovereignty or issues regarding maintaining peace; the success of implementing a doctrine of HI is contingent in part on the criteria it sets out. Bazyler highlights the importance of a doctrine of HI, not just as an excuse used to defend an armed attack after it has taken place, but providing a simple, working set of standards.155 Although, it is necessary to ensure that whilst provisions are not too stringent they are also not lax so as to open the floodgates for intervention. This part sets out three main criteria that should be implemented within the UNGA resolution and these have been drawn from the World Summit Outcome Document in addition to Chapter VII of the UN Charter, by finding roots in these provisions, it is more likely that the UNGA will agree with such proposals and also signifies a doctrine of HI that aims to uphold purposes and principles within the UN Charter. Most importantly, a UNGA Resolution stipulating these criteria must also acknowledge a commitment to fundamental values such as ‘respect for all human rights’156 in addition to the ‘sovereign equality of all States…and respect for their political independence’.157 This acknowledges a new concept of sovereignty where the principle of non-interference is contingent on the protection of populations. The first criterion should require intervention to take place to prevent or halt ‘genocide, war crimes, ethnic cleansing and crimes against humanity.’158 The danger posed by making ‘genocide’ a prerequisite for HI, may bring about ambiguity as to when genocide occurs. This was an issue that rose in relation to the civil war in 2004 in Sudan, where former Secretary- General Kofi Annan and Collin Powell were reluc-

155 Belinda Helmke, Under Attack: Challenges to rules governing the International Use of Force (Ashgate 2010) 122. 156 UNGA ‘2005 World Summit Outcome’ UNGA Res A/60/1 (16 September 2005) UN Doc A/ RES/60/1, para 4. 157 ibid para 5. 158 ibid para 139.

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tant to declare that there was genocide.159 The indeterminacy of such terms may cause a penumbra of doubt and in difficult cases result in intervention not taking place or states being sceptical of the justification of particular interventions. However, the fact that intervention may take place to prevent genocide may resolve issues about waiting until killing amounts to genocide before intervention takes place. It may be sufficient that the UNSC has declared that mass killings are a threat to international peace and security and this may satisfy the UNGA that intervention may be justified on these grounds. Conversely, it is important that a numerical figure is not used to define mass killings; otherwise states would have to wait until the number of deaths accumulated before intervention became ‘worthwhile’. This could therefore result in a particular group of a population almost being wiped out before HI is undertaken. By adopting an approach where the international community does not stand by and watch the death toll increase before intervening, a genuine commitment to protecting populations may be illustrated. Whilst the predominant aim of intervention should be to halt or prevent gross human rights violations, it is difficult to ascertain whether it is the only cause. Intervention, for example in the case of Syria, could also seek to admonish the use of chemical weapons, which has significantly contributed to gross human rights abuses.160 By having a clear criteria it will be clearer for the international community to determine the purpose of intervention and the UNSC could take enforcement action to end illegitimate intervention. The second criterion should state that HI should be contingent upon deadlock within the UNSC. This feature enables intervention to take place so as not to undermine the function of the UNSC and make it redundant. In addition, it reflects the primary role of the UNSC in authorising military intervention collectively but permits legitimate action where there is division.161 This therefore explicates the role of this doctrine, not to override the role of the UNSC but to ensure that human rights are preserved and international peace and security are maintained in situations where the UNSC cannot agree on the use of the force. Moreover, the UNSC could still ensure that states act appropriately while intervening and should be willing to condemn and criticise conduct that exceeds that 159 Robert O Collins, Civil Wars and Revolution in the Sudan: Essays on the Sudan, Southern Sudan, and Darfur, 1902-2004 (Tsehai Publishers, Hollywood 2005) 165. 160 UNSC Res 2118 (27 September 2013) UN Doc S/RES/2118, para 1. 161 UNGA ‘2005 World Summit Outcome’ UNGA Res A/60/1 (16 September 2005) UN Doc A/ RES/ 60/1, para 80.

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stipulated within the criteria. The UNSC could also pre-empt or terminate intervention and take enforcement actions against these states under Chapter VII.162 This also affirms the mandate of UNSC to restore international peace and security to restore international peace and security.163 By having this body as a police force to scrutinise intervention, there would be less ambiguity about the parameters of the doctrine and less chance of this doctrine being used as a pretext for unjust war. A major benefit of this is that it would enable legitimate intervention to circumvent a veto from Russia and China. If China and Russia wished to condemn unilateral intervention, another permanent member of the UNSC could veto the condemnation resolution. The third criterion should state that force used must be proportional and necessary in order to secure peace and bring atrocities to an end. Bazyler opines that ‘intervening states should use only enough military force to cease the killing and, if necessary, to remove the despot responsible for it.’164 Where possible, the disruption to the governmental authority should be minimal in order to prevent unnecessary breach of the state’s political independence.165 Furthermore, if overthrowing government power proves to be the only means available of ending ongoing or threatened human rights violations, the intervening state may be justified in intervening. The principle of ‘proportionality’ can be deduced from Article 42 of the UN Charter, where the UNSC is instructed to use force in a way that is ‘necessary to maintain international peace and security’.166 Putting this into perspective, a doctrine of HI should permit the use of force only to the degree necessary to bring about peace within the region and not beyond that. The measurement of proportionality should be assessed and determined as and when these catastrophes occur by the UNSC. However, aside from criteria for intervention a real commitment to protecting life and exercise of human rights would be reflected in policies also aimed at preventing these catastrophes. It is important to acknowledge and tackle factors such as socio-economic factors that may enable mass violations of human rights abuses to thrive. Karina Butler asserts that solidarists promote intervention over the act of prevention and therefore are limited to the question of ‘whether or not to intervene’ 162 UN Charter (n 1) ch VII. 163 UNGA, ‘2005 World Summit Outcome’ UNGA Res A/60/1 (16 September 2005) UN Doc A/ RES/ 60/1, para 79. 164 Michael Bazyler, ‘Re-examining the doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia’ 23 Stan J.Int’l L 597, 604. 165 Jean Pierre L Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its current validity under the UN Charter 4 CAL, W Int’l L J 203, 260. 166 UN Charter (n 1) art 42.

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when discussing the issue of HI.167 As a result, if there is genuine concern about the existence of human rights violations on a large scale in the world and about the powerful engaging in several attempts to right these wrongs, then the solution is not to formulate external objective tests for action.168 In light of this, a doctrine of HI that this piece proposes seeks not to focus solely on setting out grounds for forcible intervention in the event that the UNSC fails to act in a timely manner. A doctrine of HI should illustrate a commitment to promoting human rights universally; for example, this may be done by strengthening the UN human rights machinery to ensure effective enjoyment of human rights by all.169 To effectively do this, bodies such as the Economic and Social Council (ECOSOC) could initiate studies and reports regarding social and economic matters which may underpin gross human rights abuses.170 Subsequent to its findings, it may then make recommendations to the UNGA regarding how human rights and fundamental freedoms can be better promoted and respected.171 By striving to create environments where populations are protected, it is hoped that the need for HI becomes less frequent. Additionally, this doctrine seeks to uphold the R2P doctrine, acknowledging that when gross violations of rights occur, the UNSC that has primary function of authorising the use of force. Latterly, where the UNSC fails to authorise force in a timely manner the doctrine of HI does not create a right for states to intervene but sets out conditions agreed by the international community where intervention outside the UNSC may be deemed legitimate. By having these three steps in the doctrine of HI, a commitment to preventing and halting gross violations of human rights can be demonstrated. 6. Conclusion As this piece is concluded, it is important to review my discussion and assess whether my aims have been achieved. In the introduction, I identified the main purpose of this piece was to propose a codification of a doctrine of HI. By focusing on Syria, I aimed to show how this debate has become pertinent due to the perceived reluctance of the UNSC to open the door for military intervention despite the wors167 Karina Z Butler, A Critical Humanitarian Intervention Approach (Palgrave Macmillan May 2011) 8. 168 Chris Brown, ‘Roundtable on Humanitarian Intervention After 9/11: What exactly, is the problem to which the five-part test is the solution?’ (2005) 19(2) International Relations 225, 228-229. 169 UNGA ‘2005 World Summit Outcome’ UNGA Res A/60/1 (16 September 2005) UN Doc A/ RES/60/1, para 123. 170 UN Charter (n 1) Art 62 (1). 171 ibid Art 62(2).

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ening conflict. The UNGA envisaged the possibility of the UNSC failing to exercise its primary responsibility for the maintenance of international peace and security due to the lack of unanimity,172 and the events in Syria may highlight the need for HI in times of such failings. The doctrine of HI proposed in this piece does not afford a right to states to intervene even when the stipulated criteria is met but enables the international community to identify legitimate HI in the event that the UNSC fails to use force in a timely manner to maintain or restore international peace and security. In addition, this doctrine does not focus on when states should intervene but seeks to adhere to and uphold principles that pervade the charter. For example, it seeks to acknowledge the primary responsibility of the UNSC to maintain international peace and security in addition to acknowledging the sovereignty of states and seeking to act in a way that reflects the importance of preserving human rights. More importantly, before questions of interventions arise, the international community can show a commitment to protecting populations and promoting peace by seeking to combat root causes that give rise to gross violations of human rights. With a concept of sovereignty reconciled with the protection of populations, it is questionable whether the major impediment to the codification of this doctrine is the tension between state sovereignty. The major contention may arise between peace and HI; such concerns may surface due to the uncertainty as to how the doctrine may be construed by states. With states already providing strained interpretations of law to justify intervention that is clearly illegal, codifying a doctrine of HI may open the floodgates for intervention due to a perceived ‘legal right’ to intervene. For these reasons, the importance of condemnation by the UNSC to criticise illegitimate action is highlighted in order for the doctrine to serve its purpose. In practice, the effects of codifying this doctrine are unknown and only time will tell whether it will take another major failing of the UNSC to bring about such a codification due to the limitations of collective action under the R2P doctrine. However, it may take a radical shift in ideology where the international community esteems the protection of human rights as so fundamental within states that HI can be warranted without authorisation of the UNSC.

172

UNGA, ‘Uniting for Peace’ UNGA Res 377 A (V) (3 November 1950) UN Doc A/1175, para 1.

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Bibliography Legislation Charter of the United Nations (UN Charter) (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI UNGA ‘Establishment of an International Law Commission’ UNGA Res 174(II) (21 November 1947) UN Doc A/Res/174 (II) UNGA ‘Uniting for Peace’ UNGA Res 377 A (V) (3 November 1950) UN Doc A/ RES/1175 UNGA ‘The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations’ UNGA Res A/25/2625 (XXV) (24 October 1970) UN Doc A/RES/25/2625 UNGA ‘Strengthening of the coordination of humanitarian emergency assistance of the United Nations’ UN Res 46/182 (19 December (1991) UN Doc A/Res/46/182 UNGA ‘Report of the Secretary-General on the work of the organization’ 55th Session (2000) Supp No.1 UN Doc A/RES/55/1 UNGA‘2005 World Summit Outcome’ UNGA Res A/60/1 (16 September 2005) UN Doc A/ RES/60/1 UNSC Res 1203 (24 October 1998) UN Doc S/RES/1203 UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244 UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674 UNSC Res 1772 (20 August 2007) UN Doc S/RES/1772 UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970 UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970 UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973 UNSC Res 2117 (26 September 2013) UN Doc S/RES/2117 UNSC Res 2118 (27 September 2013) UN Doc S/RES/2118 Vienna Convention on the Law of Treaties (Vienna Convention) (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 List of cases ICJ Cases Armed activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Merits) [2005] ICJ Rep 168 Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep 4

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Fisheries (UK v Norway) [1951] ICJ Rep 116 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (Advisory Opinion) [1971] ICJ Rep 16 Legality of Use of Force (provisional measures) (pleadings of Belgium) [1999] ICJ CR 99/15 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14 North Sea Continental Shelf (Federal Republic of Germany v Netherlands; Federal Republic of Germany v Denmark) (Judgment) [1969] ICJ Rep 3 Secondary Sources Baber WF and Bartlett RV, Global Democracy and sustainable Jurisprudence: Deliberative Environmental Law (Massachusetts Institute of Technology 2009) Bazyler M, ‘Re-examining the doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia’ 23 The Stanford Journal of International Law 597 BBC, ‘Syria accused of torture and 11,000 executions’ (BBC News, 21 January 2014) < http://www.bbc.co.uk/news/world-middle-east-25822571> accessed 22 February 2014 Bellamy A and Williams P, ‘The new politics of protection? Côte d’Ivoire and the responsibility to protect’ (2011) 87(4) International Affairs 825 Brown C, ‘Roundtable on Humanitarian Intervention After 9/11: What exactly, is the problem to which the five-part test is the solution?’ (2005) 19(2) International Relations 225 Brownlie I, ‘Humanitarian Intervention’ in John Norton Moore (ed), Law and Civil War in the Modern World (John Hopkins University Press 1974) Butler KZ, A Critical Humanitarian Intervention Approach (Palgrave Macmillan May 2011) Chesterman S, Just War or Peace? Humanitarian Intervention and International Law (1st edn, OUP 2001) Collins R, Civil Wars and Revolution in the Sudan: Essays on the Sudan, Southern Sudan, and Darfur 1902-2004 (Tsehai Publishers 2005) Crawford J, Brownlie’s principles of public international law (8th edn, OUP 2012) Dixon M, McCorquodale R and Williams S, Cases and Materials on International Law (OUP 2011)

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Falk R, ‘The Legitimacy of Legislative Intervention by the United Nations’ in Fisher R. and Stanger R (eds.) Essays on Intervention (Ohio State University Press 1964) Farer TJ, Humanitarian Intervention: The view from Charlottesville’ in Lillich R (ed) Humanitarian intervention and the United Nations (University Press of Virginia, 1973) Fonteyne J, ‘The Customary Law Doctrine of Humanitarian Intervention: Its current validity under the Charter’ 4 California Western International Law Journal 203 Franck TM, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge University Press 2002) Franck TM, ‘Who killed Article 2(4)? Or: Changing norms governing the use of force by states’ (1970) 64 The American Journal of International Law 809 Franck TM and Rodley NS,‘After Bangladesh: The law of Humanitarian intervention by military force’ (1973) 67 The American Journal of International law 275 Garrett S, Doing Good and Doing Well: An Examination of Humanitarian Intervention (Praeger 1999) Gray C, International Law and the Use of Force (2nd edn, OUP Oxford 2004) –– International law and the Use of Force (3rd edn, OUP Oxford 2008) Goodman R, ‘Humanitarian Intervention and Pretexts for War’ (2006) 100 The American Journal of International Law 100 Greenwood C, ‘Humanitarian Intervention: the case of Kosovo’ in Petman J and Koskenniemi M (eds), Finnish Yearbook of International Law (Kluwer Law International 2002) The Group of 77, ‘Declaration on the Occasion of the Twenty-third annual Ministerial Meeting of the Group of 77’ (24 September 1999) <http://www.g77.org/doc/ Decl1999.html> accessed 22 February 2014 Harris DJ, Cases and Materials on International law (Sweet and Maxwell Limited, London 1998) Helmke B, Under Attack: Challenges to rules governing the International Use of Force (Ashgate 2010) Hensel H (ed), The legitimate use of force: The Just War tradition and the Customary law of Armed Conflict (Ashgate 2008) Holzgrefe JL,‘The Humanitarian debate’ in Holzgrefe JL and Keohane RO (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (CUP February 2003) Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (OUP 2000)

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Jokic A, Humanitarian Intervention: Moral and Philosophical Issues (Broadview Press 2003) Kabia JM, Humanitarian Intervention and Conflict Resolution in West Africa: From ECOMOG to ECOMIL (Ashgate 28 December 2008) Krisch N, ‘Legality, Morality and the Dilemma of Humanitarian intervention after Kosovo’ (2002) 13 The European Journal of International Law 323 Murphy S, Humanitarian Intervention: The United Nations in an Evolving world order (University of Pennsylvania Press, Pennsylvania 1996) Öberg M, ‘The Legal Effects of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’ (2006) 16(5) The European Journal of International Law 879 Pattison J, ‘Humanitarian Intervention and International Law: The Moral Importance of an Intervener’s Legal Status’ (2007) 10(3) Critical Review of International Social and Political Philosophy 301 Pattison J, Humanitarian Intervention and the Responsibility to Protect: Who should intervene? (OUP Oxford 2012) Peters A, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20(3) The European Journal of International Law 513 Reisman M, ‘Humanitarian intervention to protect the Ibos’ in Richard B Lillich (ed) Humanitarian intervention and the United Nations (University Press of Virginia, 1973) Reisman W, ‘Sovereignty and Human Rights in Contemporary International Law’ (1990) 84 The American Journal of International Law 866 Simma B, Khan D, Nolte G, Paulua A and Wessendorf N (ed) The Charter of the United Nations: A Commentary (3rd edn, OUP 2012) Tesón F, Humanitarian Intervention: An Inquiry into law and morality (2nd edn, Transnational Publishers 1997) Tyagi Y, ‘The concept of Humanitarian Intervention Revisited’ (1995) 16 The Michigan Journal of International Law 883 UN, ‘Action Group for Syria Final Communiqué’ (30 June 2012) <http://www.un.org/News/dh/infocus/Syria/FinalCommuniqueActionGroupforSyria.pdf> accessed 22 February 2014 UN, ‘Nearly 93,000 people killed in ‘vicious’ Syria conflict- UN human rights chief’ (UN News Centre,13 June 2013) <http://www.un.org/apps/news/story.asp?NewsID=45162#.UxHmDvl_s3l> accessed 22 February 2014

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UNGA Press Release (23 July 2009) UN Doc A/63/PV.97 United Nations Treaty Sections, Final Clauses of Multilateral Treaties: Handbook (United Nations Publications 2003) UN Press Release (26 March 1999) UN Doc SC/6659 UN Press Release (3 August 2011) UN Doc SC/10352 UN Press Release (4 October 2011) UN Doc SC/10403 UN Press Release (4 February 2012) UN Doc SC/10536 UN Press Release (19 July 2012) UN Doc SC/10714 UN Press Release (29 October 2013) UN Doc SC/11164 UN, ‘Report of Rapporteur of Committee I to Commission I’ (June 9 1945) UN Doc 885 1/1/34 6 UNCIO Docs 387 UNSC Verbatim Record (4 December 1971) UN Doc S/PV/1606 UNSC Verbatim Record (24 March 1999) UN Doc S/PV/3988 Volsky A, ‘Reconciling Human Rights and State Sovereignty, Justice and the law, in humanitarian interventions’ (2007) 3(1) International Public Policy Review 40 Wheeler N, Saving Strangers: Humanitarian Intervention in International Society (OUP Oxford 2000)

Liability in the Absence of Fault: Can the Doctrine of Vicarious Liability be Theoretically Justified? Tom Dean

‘The age has passed when each man might bear untroubled the burden of his own life; today, the complexities of social organization seem, too often, to have cast us, like some Old Man of the Sea, upon the shoulders of our fellows’.1 This piece considers whether the non-fault doctrine of vicarious liability is justified within tort law. Described in the past as a ‘cuckoo in the nest’,2 whilst the imposition of vicarious liability may promote ‘rough justice’3 in individual cases, it will be considered whether the arguable absence of a theoretically sound justification for the doctrine has resulted in unprincipled development and legal uncertainty within tort law. Following the recent Court of Appeal decisions in Cox v Ministry of Justice,4 and Ahmed Mohamud v WM Morrison Supermarket,5 this piece will first define the modern criteria used to determine vicarious liability. It will then be considered whether any of the prominent suggested justifications for vicarious liability provide a cogent reason for its existence within a law of torts dominated by fault-based reasoning. An attempt will be made to elucidate the ‘veritable hornets’ nest of stinging difficulties’6 that is vicarious liability, and to examine Professor Atiyah’s view that

*TA Dean, University of Bristol. The author would like to thank Professor Paula Giliker and Professor Keith Stanton for their insightful advice regarding this article. All errors remain those of the author. 1 Harold Laski, ‘Basis of Vicarious Liability’ (1916) 26 Yale Law Journal 106. 2 Paula Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press 2010) 11. 3 Imperial Chemical Industries v Shatwell [1965] 1 AC 656 (HL). 4 [2014] Civ 132, [2014] 3 WLR 1036 (EWCA). 5 [2014] Civ 116, [2014] I.C.R. D19 (EWCA). 6 Laski (n 1) 105.

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vicarious liability, like most of tort law, is a nonsense.7 1. Introduction Vicarious liability differs from the majority of tort law in that a finding of liability does not require a concurrent finding of fault. Vicarious liability exists as a ‘rule of responsibility’8 that causes an employer to be held responsible for the actions of his or her employees without the element of fault usually associated with a finding of tortious liability.9 To this extent, it is unsurprising that the removal of fault as a vital characteristic of tortious liability has attracted criticism; commenting on this prima facie injustice within vicarious liability, Lord Bramwell remarked, ’I have never been able to see why… a man should be liable for the negligence of his servant, there being no relation constituted between him and the party complaining’.10 Yet, responsibility in general does not require subjective fault. People are often responsible for their actions even if the action was not intended. For example, the art student who caused a six-inch tear in Picasso’s ‘The Actor’ painting in New York was described as responsible despite the damage being due to a momentary loss of balance.11 Similarly, negligence involves a carelessness that need not be intended. Responsibility in tort is therefore commonly justified on the basis of a failure to comply with a normative standard of conduct. A person ‘ought’ to have acted or omitted to act in a certain way according to this standard; a failure to do so may result in a finding of responsibility, despite the lack of conscious intention. Concordantly, Stevens states: ‘Our responsibility does not end with those consequences we wish to bring about’.12 7 Patrick Atiyah ‘Personal Injuries in the Twenty First Century: Thinking the Unthinkable’ in Peter Birks (ed), Wrongs and Remedies in the Twenty-First Century Wrongs and Remedies in the Twenty-First Century (Oxford: Clarendon Press 1996) ch 17, 26, 35. See also Robert Stevens, Torts and Rights (Oxford University Press 2008). 8 Paula Giliker, Tort (5th Ed, Sweet and Maxwell 2014) 263. 9 Vicarious liability commonly applies to the employment relationship where an employer may be liable for losses suffered by another person as a result of the actions of the employer’s employee. However, it is noted that a formal employment relationship is not essential for vicarious liability to be found. For the purpose of clarity, the principal actor who may be vicariously liable and his subordinate who committed the acts will be referred to as the employer and employee throughout. 10 Parliament, Before the Parliamentary Committee of 1876 (Cd 285, 1887) 46. 11 It is noted that the accident occurred just after the painting had been bought for $139 million. Huffington Post, ‘Picasso Painting “The Actor” Torn By Woman’ (Huffington Post, 27 March 2010). <http://www.huffingtonpost.com/2010/01/25/the-actor-picasso-paintin_n_435210.html> accessed 27 October 2014. See also Robert Stevens who illustrates the same point, Torts and Rights (Oxford University Press 2008) 260 illustrate the same point by referring to the knocking over a museum vase. 12 ibid.

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However, the distinct feature of the attribution of responsibility in vicarious liability, and strict liability in general, is the absence of any normative standard. With vicarious liability there is no consideration of whether the employer acted in accordance with the manner of the reasonable employer. The doctrine of vicarious liability is applied without fault. 2. Criteria Vicarious liability may be seen as requiring two components: i) A relationship ‘akin to employment’; and ii) A tort committed by an employer that has a ‘sufficient close connection’ to the nature of employment. Firstly, the relationship between the primary actor and the person alleged to be liable must be ‘akin to employment’.13 This requirement is satisfied if a contract of employment exists between the parties.14 However, in instances where a non-contractual agreement or an agreement between third parties exists, additional employment characteristics must be considered to assess the relationship.15 This was affirmed in Catholic Child Welfare v Various Claimants in which the relationship between the members of a religious institution and the religious institute itself was held to be akin to employment. This was ruled on the basis that: the institute was organised in the manner of a corporate organisation, the teaching activity of its members was directed by a sub-organisation in furtherance of the objectives of the institute, and the conduct of its members was subject to the rules imposed by the institute.16 Contrary to the previously used Salmond test, control is no longer conclusive in determining the employment relationship. Lord Phillips commented in Catholic Child Welfare: ‘Today it is not realistic to look for a right to direct how an employee should 13 JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] Civ 938, [2013] WLR 958 (EWCA). 14 ibid. 15 These factors include: employer control of the employee, which party retains ownership of any used tools, which party bears the chance of profit and the risk of loss, whether an employee had agreed to provide the work performed for the employer, whether the employee has agreed, at least impliedly, that he will be subject to the overriding control of the employer in respect to the performance of his work, and the ability of the employer to suspend or dismiss the employee. 16 Catholic Child Welfare v Various Claimants [2012] UKSC 56 (UKSC) 56.

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perform his duties as a necessary element in the relationship between employer and employee. Many employees apply a skill or expertise that is not susceptible to direction by anybody in the company that employs them. Thus the significance of control today is that the employer can direct what the employee does, not how he does it.’17 The second requirement of vicarious liability is that the wrongful act of the employee must be of a sufficiently ‘close connection’ to the nature of his or her employment.18 In Lister v Hesley Hall, Lord Steyn stated that the operative question in determining the presence of such a connection was whether the conduct of the employee fell within the scope of the employment.19 However, by defining action within the scope of employment as activity that the employer may have implicitly or expressly authorised the employee to perform, it is submitted that the judicial process of assessing whether the close connection test is satisfied involves more in practice. In an echo of Holmes’ aphorism,20 the life of the law in this aspect of vicarious liability appears to be experience: a close connection between employment and the acts of the employee appears likely to be held only if past experience has demonstrated the tortious conduct as a risk within the particular field of employment. Thus, the close connection requirement is likely to be satisfied in the case of boarding schools, prisons, geriatric homes, and other places where tortious wrongs have been historically prevalent.21 By contrast, the close connection requirement appears less likely to be satisfied regarding customers who are racially abused and kicked in the head by employees on petrol forecourts.22 However, the creation of a situation in which wrongdoing may occur is insufficient for the close connection requirement to be satisfied per se.23 For example, the mere opportunity given by employment to a school porter or groundsman to abuse school pupils may be insufficient to make the employer liable.24 Instead, the employee must be placed in a special position of responsibility by which he or she is enabled to 17 ibid 36. 18 Lister v Hesley Hall [2001] UKHL 22, [2002] 1 A.C. 215 (HL). 19 ibid 33. 20 Oliver Wendall Holmes ‘It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience.’ in The Common Law (Little, Brown and Company 1881) 1. 21 Lister (n 18) 83. 22 Ahmed Mohamud (n 5) 9-61. The tort in question concerned the appellant’s visit to a petrol station where he asked the employee whether he would print out documents that were stored on the appellant’s USB drive. The employee responded to this request with verbal abuse, before following the claimant onto the petrol station forecourt and physically assaulting him in a manner described as ‘brutal and unprovoked’. 23 ibid (n5) 49. 24 Lister (n 18) 82.

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effect the abuse. In Lister the boarding school warden was placed in a special position of responsibility by the employer which, in addition to the access to the children given by his employment, created a sufficient close connection between the work that he had been employed to do and the abusive acts he committed. Similarly, in Catholic Child Welfare v Various Claimants, Lord Phillips held that the critical component of the second stage was the ‘connection that links the relationship between D1 and D2 and the act or omission of D1’.25 Thus, the mere existence of an employment relationship is insufficient for a ruling of vicarious liability. Instead, the second component of vicarious liability requires ‘a synthesis’ of these two sub-units.26 This was affirmed in Ahmed Mohamud v WM Morrision Supermarkets in which Treacy LJ described the degree of connection between the employment and the wrongful act as ‘the critical factor’ in determining liability.27 3. Justifications Given that vicarious liability contradicts the traditional character of tort law, described as ‘the slow, uncertain but on the whole majestic emergence of the principle that a man is liable for the damage caused by his fault’,28 it appears vital that a cogent reason for the imposition of vicarious liability be found. If, as Cane argues,29 there is no justification or set of justifications supporting the doctrine then reform may be needed to produce greater consistency between case judgments. It is posited that the development of the common law is best conducted on an incremental basis, rather than relying upon notions of justice and fairness that McIvor opines may only be considered on a case specific basis.30 Legal rules, such as those constituting the doctrine of vicarious liability, may be used to try to achieve a policy aim. However, there must be a cogent rationale for the use of those particular legal rules for such use to be justified and arbitrariness to be avoided. Accordingly, this section will examine the prominent theoretical justifications suggested for the existence 25 Catholic Child Welfare (n 16) 21. 26 Various Claimants v Catholic Child Welfare Society [2010] Civ 1106, [2013] All ER 670 (CA) 37. Affirmed by Lord Phillips on appeal in Catholic Child Welfare (n16) 21. 27 Ahmed (n 5) 22. 28 André Tunc, ‘Tort Law and the Moral Law: Inaugural Lecture’ (1972) The Cambridge Law Journal 30(2). 29 Peter Cane, ‘Justice and Justifications for Tort Liability’ (1982) Oxford Journal of Legal Studies 30, 53. 30 Clair McIvor, ‘The Use and Abuse of the Doctrine of Vicarious Liability’ (2006) 35(4) Common Law World Review 279. McIvor states: ‘justice’ and ‘fairness’ are wholly subjective concepts that are only capable of taking on any real meaning when applied against the backdrop of an articulated set of core values.’

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of vicarious liability and consider whether its non-fault character is justified, despite its position as a ‘cuckoo in the nest’ of tort law.31 A. Deterrence theory Arden LJ justifies vicarious liability on the basis that the doctrine provides an ‘incentive to employers to improve the standards of safety provided for members of the public’.32 Under the deterrence theory, the employer’s knowledge of vicarious liability susceptibility and the cost of potential compensation is posited as encouraging the employer to exercise greater scrutiny over the actions of his employee; the employer is provided with a financial inducement to act to lower the chances of employee tortious wrongdoing. Bentham commented on this rationale for vicarious liability, stating ‘the obligation imposed upon the master acts as a punishment, and diminishes the chances of similar misfortunes. He is interested in knowing the character, and watching over the conduct of them for whom he is answerable. The law makes him an inspector of police, a domestic magistrate, by rendering him liable for their imprudence’.33 Following the deterrence theory, vicarious liability may be seen as encouraging the employer to exercise care beyond the negligence standard of conduct expected of a reasonable employer. In response to the increase in corporate power and the practice of mass production at the beginning of the 20th century, Laski argued that vicarious liability served a social role, stating that a company ‘tends to be less careful of human life, more socially wasteful than the individual has been…it is only by enforcing vicarious liability that we can hope to make effective those labour laws intended’.34 However, whilst employers may ‘often be in a position to reduce accidents and intentional wrongs by efficient organisation and supervision’,35 the rationale underlying the deterrence theory appears flawed given that vicarious liability may be imposed even when it would have been impossible for the employer to prevent tortious wrongdoing. For example, if an employee accidentally fell asleep whilst driving during the course of his employment, the employer might still be vicariously liable for negligent 31 Giliker, (n 2). 32 Ahmed (n 5) 62. 33 Jeremy Bentham, Principles of Penal Law (first published 1781, University of Adelaide 2014) <https:// ebooks.adelaide.edu.au/b/bentham/jeremy/principles_of_penal_law/part1.html > accessed 24 November 2014. 34 Laski (n 1) 124. 35 Bazley v Curry [1999] 2 SCR 534 (SCC).

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injury or other tort caused by the employee.36 Additionally, by buying employee liability insurance, employers may ‘contract out’ of tortious liability.37 It is suggested that the availability of this insurance, combined with the statutory requirement for all employers to have it,38 may render the deterrent effect of vicarious liability negligible. It is submitted that the deterrence theory also fails to adequately explain vicarious liability in instances of employee intentional tort. An employer may act to avoid all foreseeable torts yet still be vicariously liable if an employee acts in deliberate contravention of those measures designed to prevent a tort.39 Thus the deterrence theory may encourage an employer to adopt preventative measures in an effort to lower the likelihood of an employee tort, however the employer will remain liable regardless of the implementation of any measures. B. Implied contract theory In contrast to the ‘frustration’ and ‘scratching around’ for a compelling justification of vicarious liability that leading jurists have felt,40 Neyers states: ‘The answer is simple: the employer can be sued because the tort victim is subrogated to the contractual indemnity, the employee because she committed a civil wrong’.41 The implied contract theory suggests that an implied promise within the contract of employment exists ‘to indemnify the employee for harms (including legal liability) suffered by the employee in the conduct of the employer’s business’.42 Thus, the theory provides a normative reason for the vicarious nature of vicarious liability; the employer is held liable because he or she chose to provide the implied promise of employee indemnity as a part of the consideration within the employment contract. However, it is submitted that implied contract theory fails to explain employer 36 See Smith v Stages [1989] AC 928 (HL) and Staton v NCB [1957] 1 WLR 893 (QB). 37 Glanville Williams, Foundations of the Law of Tort (Butterworths 1984) 14. 38 Employers’ Liability (Compulsory Insurance) Act 1969. The financial cover provided in respect of employee liability is £5 million following Regulation 3(1) of the Employers’ Liability (Compulsory Insurance) Regulations 1998. 39 JGE (n 13). 40 See Vicarious Liability (n 29) Preface; Giliker describes a feeling of frustration at the lack of a clear rationale regarding vicarious liability. Atiyah described his process of ‘scratching around for arguments’ with which to justify vicarious liability in ‘Personal Injuries in the Twenty First Century’ in Peter Birks (ed) Wrongs and Remedies in the Twenty-first Century (Clarendon Press 1996). 41 Jason Neyers, ‘A Theory of Vicarious Liability’ (2005) 43 Alberta Law Review 28, 18. 42 ibid 15.

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liability regarding employee intentional torts. Considering Lister, the application of the theory would suggest that the employee’s action was within the conduct of the employer’s business in instances in which the employer was found vicariously liable. The logical conclusion that the vicariously liable employer in Lister implicitly agreed to support the sexual abuse of children appears divorced from reality. Such logic demonstrates the presence of a serious defect within implied contract theory reasoning. In response, Neyers concluded that Lister had been wrongly decided, suggesting that a non-delegable duty had been misconstrued as vicarious liability, so rendering the judgment ‘obtuse’.43 Regarding vicarious liability in intentional torts generally, Neyers argues that all rulings of vicarious liability in the case of employee intentional tort were ‘either wrongly decide or also explicable on this basis (that vicarious liability had been imposed because of the existence of some employer fault)’.44 This dismissal of a substantial body of case law appears unjustified. No reason is provided as to why the courts erred in the application of the law in Fenelly45 or Viasystems46 for example. Furthermore, it is arguable that a consistent mode of judicial behavior regarding a common law doctrine may constitute a case law development and a change to the doctrine in substance. Vicarious liability consists of precedent. To ignore a substantial number of later cases because they are not within the previous confines of vicarious liability is to ignore the nature of tort law development. Concordantly, Neyers’ dismissal of cases in this manner appears to constitute a failure to recognise the evolving nature of the precedent-based doctrine of vicarious liability. The implied contract theory also appears flawed in that it presupposes the presence of a relationship akin to contract, rather than the relationship akin to employment, as essential for vicarious liability. Neyers comments, ‘an employer is not liable because of some quasi-fault or gain-based principle of strict liability, but rather because she has assumed responsibility under the regime of contract’.47 However, as stated above, following JGE vicarious liability may exist in a relationship ‘akin to employment’48 that is outside of a formal contract. Thus, the implied contract theory fails to recognise the modern existence of vicarious liability in 43 ibid 32. 44 ibid 28. 45 Fenelly v Connex South Eastern [2001] IRLR 390 (EWCA). 46 Viasystems (Tyneside) v Thermal Transfer (Northern) [2005] Civ 1151, [2006] QB 510 (EWCA). 47 ibid 18. 48 JGE (n 13).

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non-contractual relationships. This distinction between a contractual and an ‘akin to employment’ relationship was highlighted in Whetstone v Medical Protection Society where Seymour J remarked: ‘It seems to me that the relationship between Mr Whetstone and Mr Sudworth was as “akin to employment” as one could get in a relationship deliberately structured by contract to avoid an employment relationship’.49 In view of these flaws within the implied contract theory it is submitted that the answer to the problem of vicarious liability may not be as ‘simple’ as Neyers thought. C. Enterprise Liability Theory As stated in the Canadian case of Bazley v Curry, the enterprise liability theory suggests that the employer should be vicariously liable for loss caused by risk inherent to his enterprise that is produced by the employees of the business.50 As any enterprise necessarily involves the formation of some risk, the employer should be liable for the creation of risks that occur in the pursuit of the employer’s interests.51 Following Catholic Child Welfare, the enterprise risk theory may be seen as the prevailing theory for the existence of the doctrine of vicarious liability within contemporary judicial reasoning. Responding to the 170 complaints of child sexual abuse perpetrated by members of the Catholic Institution within the case, Lord Phillips stated: ‘Vicarious liability is imposed where a Defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse’.52 Similarly, in Cox v Ministry of Justice, McCombe LJ adopted the enterprise liability theory as the basis for the imposition of vicarious liability, stating that ‘the 49 Whetstone (t/a Whelby House Dental Practice) v Medical Protection Society [2014] EWHC 1024 (QB) 123. 50 [1999] 2 SCR 534 41 (SCC). 51 Dubai Aluminium v Salaam [2002] UKHL 48, [35] (Lord Nicholls): ‘Business enterprise…involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on. When those risks ripen into loss, it is just that the business should be responsible for compensation the person who has been wronged’. 52 Catholic Child Welfare (n 16) 86. See also the discussion by Lord Phillips of enterprise liability as the dominant rationale for vicarious liability in prior cases at 66-75.

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work was clearly done on the Respondent’s behalf and for its benefit’, before adding that ‘the feeding of the prisoners and the procurement of supplies for that purpose was clearly part of the venture, enterprise or ‘business’ of the Respondent’.53 In Whetstone, Seymour J emphasised enterprise risk theory as the justification for vicarious liability following the creation of a risk of negligence by the employer in permitting another dentist to operate from his dental surgery as a part of his business.54 However, problems appear in the use of the rationale in judicial reasoning. Instead of considering whether a risk has been created by an activity within the particular employment, the risk may be seen as created by the fact of employment per se.55 Thus, Brodie states that the justification may be applied because the operative question of the courts becomes whether the tort would have occurred but for the existence of the employment, rather than if the circumstances of the employment in particular caused a material increase in the risk of the tort.56 The ‘but for’ interpretation of the rationale means that the employer will always be justified as liable for any tort committed by an employee, regardless of whether the risk of the tort was created in the pursuit of the employer’s particular enterprise. Concordantly, in Bazely v Curry, McLachlin J stated: ‘reduced to formalistic premises, any employment can be seen to provide the causation of an employee’s tort [under the enterprise theory]. Therefore ‘mere opportunity’ to commit a tort, in the common ‘but for’ understanding of that phrase, does not suffice…the enterprise and employment must not only provide the local or the bare opportunity for the employee to commit his or her wrong, it must materially enhance the risk, in the sense of contributing to it, before it is fair to hold the employer vicariously liable’.57 Moreover, if the link between the employer and tort is merely the fact of employment or, more accurately, the presence of an ‘akin to employment’ relationship, there appears to be no reason why liability should be limited to loss caused by the torts 53 [2014] Civ 132, [2014] 3 WLR 1036 (EWCA) 45. 54 [2014] EWHC 1024 (QB). 55 Douglas Brodie, ‘Enterprise Liability: Justifying Vicarious Liability’ (2007) 27(3) Oxford Journal of Legal Studies 501. 56 ibid. 57 Bazley (n 35) 40.

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of the employee.58 The enterprise liability theory also fails to explain the extent of the liability; for example, why should employers’ liability be unlimited in value instead of being based upon how much the employer may profit through the creation of the risk.59 Additionally, there appears to be no reason why charities are susceptible to unlimited liability when acting in a non-profit capacity for the benefit of the public. On these bases, it is argued that the enterprise liability theory fails to provide an adequate rationale for the existence of vicarious liability. D. Authority theory The authority theory suggests that the power vested in an employer to direct the conduct of an employee is a crucial element of the employment relationship since it enables the employer to use the human effort provided by the employee, in whatever form, to achieve the objectives of the employer.60 The theory suggests that this conferral of authoritative power is particularly significant within the employment relationship given the potential for such influence to be abused by the employer.61 The submission of the employee to employer direction may create a conflict between the employee’s duties within the employment relationship and general legal obligations. Thus, the employee may be pressured to perform his or her employment duties rather than complying with his or her legal responsibilities.62 In this manner, it is conceivable that an employee may be forced to choose between the chance of losing the benefits of the employment relationship, and the potential risk of harm to a third party that non-compliance with the surrounding legal obligations may engender. Given the likely difficulty in estimating the risk of harm involved in non-compliance with a legal obligation, such as breaking the speed limit whilst driving, an employee may choose to prefer the more tangible rewards involved in the fulfilment of his or her employment duties and assume whatever risk may accompany non-compliance with the law. Accordingly, Beuermann states, the ‘disparity in bargaining power between an employer and an employee [makes] it very difficult for employees to adequately as58 Giliker (n 31) 20. 59 Thomas Baty, Vicarious Liability (Clarendon Press 1916) 147. 60 Christine Beuermann, ‘Disassociating the Two Forms of So-Called Vicarious Liability’ in Stephen G, A Pitel, Jason Neyers and Erika Chamberlain (eds) Tort Law: Challenging Orthodoxy (Hart Publishing 2013) 467. 61 ibid 472. 62 ibid.

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sess the risks that they might face by entering into an employment relationship’.63 On that basis, Beuermann posits the central rationale of the authority model: ‘strict liability for the wrongdoing of an employee responds to the potential for abuse of the authority vested in an employer by holding an employer liable regardless of personal fault for any harm wrongfully caused by an employee to a stranger to the employment relationship’.64 Although the authority model exceeds the accomplishment of the other theories of justification by explaining why the employer should be vicariously liable for tortious damage committed in the course of employment, opposed to all damage resulting from the enterprise, it is submitted that the authority model fails to explain the imposition of vicarious liability in cases involving intentional employee torts, which the employer could not be said to have authorised by employment. For example, in Wallbank the employer was held vicariously liable after an employee (E1) grabbed the face of another employee (the managing director of the firm), who was helping to correct a mistake that E1 had made, and threw him onto a table 3 metres away, breaking the director’s back.65 The employer did not direct the employee to perform the physical assault; there was no conflict between the employer’s instruction to the employee and the general law of trespass against the person. Unlike Mattis v Pollock,66 there was no evidence that the employer had issued any direction encouraging physical violence of any sort. Similarly, by directing the employee to respectfully care for the vulnerable children in a residential home, it is unreasonable to conclude that the employer in Catholic Child Welfare had created a conflict between the exercise of its authority and a general principle of law. It is trite to state that both the employer and the law were unequivocally united in opposition to the employee’s sexually abusive conduct. Beuermann recognises these discrepancies, arguing that Wallbank was incorrectly decided and that the employers in the child sexual abuse cases were also ‘vested with authority to direct the conduct of the children in their care’.67 However, assuming Beuermann is correct in her view that Wallbank was incorrectly decided because the close connection test used in fraud cases was given undue significance, the close 63 ibid 473. 64 ibid 474. 65 Wallbank v Wallbank Fox Designs Ltd; Weddall v Barchester Healthcare Ltd [2012] Civ 25, [2012] IRLR 307 (EWCA). 66 [2003] Civ 887, [2003] 1 WLR 2158 (EWCA). 67 Beuermann (n 60) 484.

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connection test is now an integral part of the test for a sufficient relationship of employment within vicarious liability. Regarding the child sexual abuse cases, there is no reason provided by Beuermann for her suggestion that the employee may be seen as the agent of the employer in cases involving sexual abuse, or why the institution may be seen as having vested authority in the employers to act on its behalf as a proxy in similar cases involving abuse. Correspondingly, it is submitted that any valid justification of vicarious liability must provide a normative explanation for the doctrine as it now appears. A justification that rests upon eliminating parts of vicarious liability for its cogency fails to fully explain the doctrine. E. ‘Deep Pockets’ and Loss Spreading Described by Baty as the only proposed justification for vicarious liability that is not ‘hopeless groping’,68 the ‘deep pockets’ rationale explains the existence of vicarious liability in terms of distributive justice; it is imperative that victims of tortious wrongdoing should receive compensation, it is more likely that employers will be able to pay full compensation than employees, thus liability is imposed upon employers. Holt CJ stated that the victim was likely to be the least guilty of tortious wrongdoing in the relationships between a tort victim, employee and employer, in what Giliker terms the ‘victim triangle’.69 However, there appears to be no a priori justification for the existence of the victim triangle: why should the employer be made responsible for the wrongdoing of his employee? If the purpose of vicarious liability is to find a solvent defendant as Williams states,70 then it is submitted that the party or parties best able to achieve the objective of providing full compensation to victims should pay. On this basis, the state would seem to be the best placed single party to provide compensation. If the employer is liable merely on the grounds of a finding a solvent party, there would appear to be no reason for holding only the employer liable and not extending the relationship of the victim triangle to that of a ‘victim polygon’, with many different solvent contributors at the many vertices of the shape, especially given the

68 Baty (n 59) 148. 69 Giliker (n 31) 150; ie, the relationship between victim, employee, and employer following tortious conduct by the employee. 70 ‘However distasteful the theory may be, we have to admit that vicarious liability owes its explanation, if not its justification, to the search for a solvent defendant’. Glanville Williams, ‘Vicarious liability and the Master’s Indemnity’ 20 The Modern Law Review (1957) 220, 232.

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decision in Viasystems that different parties can share joint vicarious liability.71 The Loss Spreading rationale suggests that adequate compensation is more likely to be obtained, without imposing a crippling economic burden upon an individual, if the cost is spread across many people. Making the employer liable is seen as a suitable mechanism for this aim: the employer may charge higher prices for his or her services and may also take out employee liability insurance to cover the cost of potential compensation, thus dividing the cost of vicarious liability throughout his or her customer base.72 Employee liability insurance protects employers from the potential financial loss of vicarious liability, with the cost of providing compensation to victims of employee tortious conduct passed on to the insurance company and shared by the premium payers of insurance schemes. Thus, the financial burden of providing vicarious liability compensation may be restricted to employers who pay such insurance premiums, rather than being inflicted upon the whole of society through state compensation funded by tax revenue.73 The cost of paying this insurance premium may then be factored into the price that the employer charges the customer for his or her services. However, such reasoning fails to explain why an employer may still be held liable if there is no customer base upon which to spread his or her losses. For example, in Catholic Child Welfare the employer was held vicariously liable despite providing a charitable service to non-paying recipients.74 Additionally, as Stevens notes, there appears to be no reason why a particular employer should be vicariously liable for the tort of an employee.75 Other employers may be better able to spread a loss through a wider customer base. Loss spreading has been suggested as the rationale for vicarious liability on the basis that it is ‘socially more expedient to spread or distribute among a large group of the community…than to cast the loss upon a few’.76 It is noted that the decision in Viasystems (Tyneside) Ltd77 to allow multiple employers to be held vicariously liable appears to demonstrate the use of the common law as an instrument of loss spread71 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] Civ 1151, [2006] QB 510 (EWCA). 72 Dubai Aluminium v Salaam [2002] UKHL 48 107, [2003] 2 AC 366 (HL). 73 It is noted that a scheme of state based compensation could be paid out of a fund created by a tax paid only by employers, perhaps similar to national insurance, which restricted the pecuniary burden to those susceptible to vicarious liability. 74 Catholic Child Welfare (n 16). 75 Stevens (n 12) 258. 76 Young Smith, ‘Frolic and Detour’ (1923) 23 Columbia Law Review 457-8. 77 Viasystems (n 71).

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ing, albeit limited to a small number of employers. However, if the aim of vicarious liability is, as the loss spreading theory suggests, to spread the cost of losses suffered as a result of tort in manner analogous to that of a no-fault social insurance scheme, then the mechanism of vicarious liability indeed appears to be ‘an extraordinarily inefficient way of doing so’.78 It is conceivable that the legal fees alone might equal or exceed the cost of the compensation eventually awarded. Furthermore, it is submitted that the introduction of a loss spreading mechanism would appear to be a political issue outside the proper remit of the judiciary. Similarly, Williams questions what warrant the judiciary have for introducing a system of social insurance.79 It is submitted the judiciary are best placed to protect individual rights, including property rights, however decisions made on the basis of social utility, such as the redistribution of property in the absence of fault as involved in loss spreading, may be most aptly decided by the elected legislature. Moreover, the loss spreading rationale appears to lack any normative reason as to why the loss should be spread through the employer in particular. Tort victims may be compensated in many different ways, including government compensation funds - as used to compensate victims of the 1970s Thalidomide crisis, social security, and individual insurance policies.80 As Giliker states, ‘The importance of victim compensation tells us why some scheme is needed, but it does not dictate which scheme should be used’.81 Thus, the question remains: why should the employer pay? None of the rationales discussed hitherto appear to explain why vicarious liability should be vicarious. The arguments above appear as justifications for strict liability in general: there is no explanation as to why an employer’s liability is limited to the torts of those who satisfy the employment relationship criteria. No reason has been provided as to why the employer is not held liable for all losses resulting from his or her activity. F. Mixed Policy Considering the flaws that appear to exist within the pre-existing theories that seek to provide a justification for vicarious liability, Giliker argues that the modern doctrine of vicarious liability does not rely upon any dominant rationale but may 78 Williams (n 37) 135. 79 ibid. 80 Giliker (n 31) 237. Emphasis added. 81 ibid.

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involve a combination of policy reasons.82 This is a sentiment echoed by Williams who comments that ‘vicarious liability is the creation of many judges who have had different ideas of its justification or social policy, or no idea at all’.83 Similarly, Millett LJ described the function of vicarious liability as a loss distribution device, justified by serving the general requirements of social and economic policy.84 Whilst the imposition of vicarious liability may be based on mixed policy, as seen in JGE85, it is submitted that the use of a mix of policy reasons to explain vicarious liability whenever it is deemed fair and just to do so by the court may lead to uncertainty and the unprincipled development of the doctrine. Concordantly, Stevens has stated that, ‘justifications for legal rules are not like the ingredients of vegetable soup. We cannot simply add together a number of disparate ingredients and hope to get a satisfactory result’.86 Without a single justification, there may be a danger of ‘outcome-led’ reasoning whereby the judge intuitively decides the verdict, according to his or her notions of morality and justice, before constructing a legal argument that justifies the decision. Whilst such retroactive reasoning may be logically valid if the latterly formed premises support the conclusion, it is submitted that a decision produced in such a way is likely to be based on a constricted view of the surrounding legal principles. Thus the judgment, whilst logically valid, may be diminished by a lack of context. Accordingly, the approach in upholding vicarious liability for the employer in Mattis v Pollock, may be seen as an attempt to provide compensation to the victim of the knife attack on the grounds of justice, arguably on the presumption of the employee’s ‘impecuniosity’.87 Little attempt was made in Mattis to apply a theoretical justification to the imposition of vicarious liability upon the employer; Judge LJ made only a slight reference to the general policy objectives88, with no analysis of a raison d’etre for vicarious liability. Furthermore, it is submitted that unprincipled development may result from a mixed policy approach in the absence of a single dominant rationale to delimit the 82 Giliker (n 31) 244. Citing John Fleming, The Law of Torts (9th edn, LBC Information Services 1998) 410, Giliker argues that vicarious liability should instead be seen as ‘having its basis in a combination of policy consideration’. 83 Williams (n 37). 84 Dubai Aluminium (n 72) 107. 85 JGE (n13) 53. 86 Stevens (n 12) 259. 87 McIver (n 30). 88 Mattis (n 66) 21-25. A detailed discussion of policy reasons for the imposition of vicarious liability within the case appears absent.

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expansion of vicarious liability. As McIvor states, ‘if the doctrine is to retain any kind of legitimate position in the English tort system, its remit must in future be confined within the boundaries set by a strictly construed theory’.89 This is not to suggest that the confines of the doctrine should be rigid. Instead, principled change should occur in accordance with ‘the changing values of society’.90 It is submitted that principled change cannot occur unless there is a clear justifying rationale upon which the rational development of legal principles can occur. As McIvor suggests, ‘If the courts persist with this broad policy-based approach…the inevitable result will be the creation of an uncontainable regime of no-fault liability’.91 The development of vicarious liability based on mixed policy seems likely to breed legal uncertainty; in the words of Burrough J, public policy is ‘a very unruly horse, and when you get astride it, you never know where it will carry you’.92 4. Concluding remarks Vicarious liability serves to provide a means of recompense to the victim. Alternative means of redress may exist, such as individual insurance or government schemes, however the applicability of current systems of compensation is less certain. In contrast, vicarious liability provides an applicable compensation system wherever a sufficient relationship of employment exists. It is submitted that the doctrine of vicarious liability therefore encourages a more social view of the tort system, emphasising the shared responsibility of society to offer recompense to those innocently injured. Each individual may be seen as having a right not to be injured as a result of tortious conduct, with society having a corresponding duty to provide compensation if this right is infringed.93 Vicarious liability therefore provides a mechanism for this right to be enforced. It is not disputed that this right to compensation is necessary. However, it is argued that the lack of a cogent rationale for vicarious liability has produced ‘a mass of unnecessary and obfuscating detail’94 that leading jurists, such as Atiyah and Giliker, 89 McIvor (n 30) 288. 90 Giliker (n 31) 254. 91 McIvor (n 30) 296. 92 Richardson v Mellish (1824) 2 Bing 252. 93 Wesley Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Legal Reasoning’ (1913) Yale Law Journal 23. 94 Christine Beuermann, ‘Vicarious Liability and Conferred Authority Strict Liability’ (2013) Torts Law Journal 20(3) 265.

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have struggled to interpret. Given the lack of a coherent theoretical base upon which principled legal development of the doctrine may occur, it is arguable that the expansion of vicarious liability, based on policy considerations and an emphasis on ‘social convenience and rough justice’,95 may have caused the ‘uncertainty and confusion’ in the law that Stevens described.96 Likewise, Laski writes of the ‘bewildering labyrinth that confronts us’, further stating that ‘if the judiciary continue to apply general principles founded on a dangerous and unsatisfying fiction, only confusion of a lamentable kind can result’.97 Thus, two solutions are suggested as parting thoughts that might allow tort victims to retain access to compensation, whilst also facilitating the coherent development of the law henceforth: i) The reform of vicarious liability It is suggested that vicarious liability might be reformed in a manner that involves the creation of a coherent rationale upon which further principled legal development may occur. This might involve the reform of the current enterprise liability rationale to tie liability to the employer in the event that the employee tortfeasor is unable to afford full compensation, perhaps making the employer responsible for the excess, in the event that the risk that materialised was intimately linked to the pursuit of the employer’s particular enterprise. It is highlighted that such practical suggestions are merely speculative ideas; the principal recommendation is that of effective reform in a manner that provides a cogent rationale for vicarious liability to serve as a method of providing tort victim compensation. ii) A partially state-funded compensation system. As the taxpayer funds the state, the costs of providing compensation for tortious acts could be funded by all the tax paying citizens of the country. It is suggested that a partially state-funded compensation system could be created whereby the state pays the tort victim any excess compensation that the tortfeasor is unable to afford. The ‘af95 Imperial Chemical Industries v Shatwell [1965] 1 AC 656, Pearce LJ stated at 11: ‘The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice.’ 96 Stevens (n 12) 274. 97 Laski (n 1) 105.

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fordable’ level might be calculated according to the financial income of the tortfeasor. By maintaining personal liability for torts, the financial disincentive to commit tort actions may remain whilst ensuring that the tort victim receives adequate compensation. A significant obstacle to such a system is that a partially state-funded compensation system would require legislation to be enacted. A motion towards such legislation seems unlikely to be popular given the increase in tax that it would likely entail.98 However, it is argued that such a state system would further enhance the constructive social role of tort, ensuring full financial compensation is given to victims of civil wrongs in a more equitable manner. Instead of particular burdens being placed upon particular employers and insurance companies via vicarious liability and, outside of vicarious liability, the possibility of financially crippling tort actions against an individual, a partially state-funded system would allow the burden to be shared more efficiently. Moreover, given that all people may benefit from the tort system, it seems just that all should contribute to enjoy the financial cover that it provides. However, considering the political obstruction to a partially state-funded tort system, it is submitted that the reform of vicarious liability appears to be the more achievable solution for the time being. Whilst in JGE Ward LJ lamented the lack of an opportunity to consider the theoretical justifications underpinning vicarious liability,99 it is to be hoped that the upcoming appeal following Ahmed Mohamud v WM Morrison Supermarkets100 will see the Supreme Court provide a cogent theoretical basis for the future principled development of vicarious liability, after several centuries of ambiguity.

98 This problem may be particularly pronounced in the short term given the forthcoming 2015 general election. 99 [2012] Civ 938 [52], [2013] WLR 198 (EWCA). 100 Appeal granted 24 July 2014. UKSC, ‘Permission to Appeal results – July 2014’ <https://www. supremecourt.uk/docs/permission-to-appeal-2014-07.pdf> accessed 7 June 2014.

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Bibliography List of cases Ahmed Mohamud v WM Morrison Supermarket [2014] Civ 116; [2014] ICR D19 (EWCA) Bazley v Curry [1999] 2 SCR 534 (SCC) Cox v Ministry of Justice [2014] Civ 132; [2014] 3 WLR 1036 (EWCA) Catholic Child Welfare v Various Claimants [2012] UKSC 56 Dubai Aluminium v Salaam [2002] UKHL 48 Fenelly v Connex South Eastern [2001] IRLR 390 (EWCA). Imperial Chemical Industries v Shatwell [1965] 1 AC 656 (HL). JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] Civ 938; [2013] WLR 958 (EWCA). Lister v Hesley Hall [2001] UKHL 22, [2002] 1 AC 215 (HL). Mattis v Pollock [2003] Civ 887; [2003] 1 WLR 2158 (EWCA). Richardson v Mellish (1824) 2 Bing 252. Staton v NCB [1957] 1 WLR 893 (QB) Smith v Stages [1989] AC 928 (HL) Various Claimants v Catholic Child Welfare Society [2010] Civ 1106, [2013] All ER 670 (CA) 37 Viasystems (Tyneside) v Thermal Transfer (Northern) [2005] Civ 1151, [2006] QB 510 (EWCA) Wallbank v Wallbank Fox Designs Ltd; Weddall v Barchester Healthcare Ltd [2012] Civ 25, [2012] IRLR 307 (EWCA). Whetstone (t/a Whelby House Dental Practice) v Medical Protection Society [2014] EWHC 1024 (QB) 123 Legislation Employers’ Liability (Compulsory Insurance) Act 1969 Employers’ Liability (Compulsory Insurance) Regulations 1998. Secondary sources Books Baty T, Vicarious Liability (Clarendon Press 1916)

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Bentham J, Principles of Penal Law (first published 1781, University of Adelaide 2014) <https://ebooks.adelaide.edu.au/b/bentham/jeremy/principles_of_penal_law/ part1.html > accessed 24 November 2014 Giliker P, Tort (5th Ed, Sweet and Maxwell 2014) Holmes O, The Common Law (Little, Brown and Company 1881) Giliker P, Vicarious Liability in Tort: A Comparative Perspective (Cambridge University Press 2010) Stevens R, Torts and Rights (Oxford University Press 2008) Williams G, Foundations of the Law of Tort (Butterworths 1984) Chapters in edited books Atiyah P, ‘Personal Injuries in the Twenty First Century: Thinking the Unthinkable’ in Peter Birks (ed), Wrongs and Remedies in the Twenty-First Century Wrongs and Remedies in the Twenty-First Century (Oxford: Clarendon Press 1996) Beuermann C, ‘Disassociating the Two Forms of So-Called ‘Vicarious Liability’, in Stephen G and others (eds), Tort Law: Challenging Orthodoxy (Hart Publishing 2013) Journal articles Beuermann C, ‘Vicarious Liability and Conferred Authority Strict Liability’ (2013) 20(3) Torts Law Journal 265 Brodie D, ‘Enterprise Liability: Justifying Vicarious Liability’ (2007) 27(3) Oxford Journal of Legal Studies 501 Cane P, ‘Justice and Justifications for Tort Liability’ (1982) Oxford Journal of Legal Studies 30 Hohfeld W, ‘Some Fundamental Legal Conceptions as Applied in Legal Reasoning’ (1913) 23 Yale Law Journal Laski H, ‘Basis of Vicarious Liability’ (1916) 26 Yale Law Journal 106 McIvor C, ‘The Use and Abuse of the Doctrine of Vicarious Liability’ (2006) 35(4) Common Law World Review Neyers J, ‘A Theory of Vicarious Liability’ (2005) 43 Alberta Law Review 28 Tunc A, ‘Tort Law and the Moral Law: Inaugural Lecture’ (1972) Cambridge Law Journal 30(2) Williams G, (1957) ‘Vicarious liability and the Master’s Indemnity’ 20 The Modern Law Review 220 Young S, ‘Frolic and Detour’ (1923) 23 Columbia Law Review

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Online court notices United Kingdom Supreme Court, ‘Permission to Appeal results – July 2014’ <https:// www.supremecourt.uk/docs/permission-to-appeal-2014-07.pdf> accessed 7 June 2014 Online news articles Huffington Post, ‘Picasso Painting “The Actor” Torn By Woman’ (Huffington Post, 27 March 2010). <http://www.huffingtonpost.com/2010/01/25/the-actor-picasso-paintin_n_435210. html> accessed 27 September 2014 Parliamentary reports Parliament, Before the Parliamentary Committee of 1876 (Cd 285, 1887)

Do English Law, Hague-Visby Rules and Rotterdam Rules Provide Adequate Legal Frameworks Regarding the Carriage of Dangerous Goods? Armandos Lestos

1. Summary The shipping of dangerous goods around the world is now a complex, high-volume business. International law has struggled to keep pace with developments, particularly issues of responsibility and liability. This paper aims to give an overview of both the International and the English guidelines that govern their transportation. Particular emphasis is given to the definition of dangerous goods, as elucidated by the English courts. In order to establish who are the responsible parties in each shipment, this paper will focus on the contractual relationship between the key players: the shippers, the carriers and the lawful holders of the bill of lading. As the title suggests, this analysis is conducted by referring to both English common law and the foremost international Conventions such as the Hague, the Hague-Visby Rules and the U.N. Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, generally known as the Rotterdam Rules. The analysis will show how these legal frameworks are interrelated. When it is necessary specific reference will be made to the U.S. legal approach on this matter. 2. Introduction Due to globalization and industrial expansion, the shipment1 of ‘dangerous goods’2 has become a high-volume, complex business covering the whole globe. It has been estimated that nowadays more than fifty per cent of the goods carried by sea are regarded as dangerous, and for that reason they need to be handled appropriate-

1 For a chronological classification see Cedre Centre of Documentation, Research and Experimentation on Accidental Water Pollution <http://www.cedre.fr/en/spill/chronological-classification.php> accessed 26 October 2013. 2 See Chapter 3 ‘The meaning of dangerous goods’.

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ly.3 The transportation of these goods substantially increased after the end of World War II because of the considerable increase in demand fuelled by the spread of the industrial revolution and laissez-faire economic philosophy to less developed countries. It appears likely that the specific increase in dangerous goods has arisen from high demand creating shortages in basic commodities with the consequence that many have been replaced with synthetic products that necessitate the shipment of dangerous substances.4 Over the last sixty years there have been many serious incidents involving these cargoes. In particular, marine practice has proved that the shipment of dangerous goods, when compared to ordinary cargoes, often leads to prejudicial effects, such as fire or explosions on the vessels, affecting other cargoes and causing, marine and air pollution through, spillages. Recognising this, certain international and national statutory provisions have been created in order to prevent such undesirable consequences. But the important question is: how comprehensive is their coverage of matters relating to dangerous cargoes? In attempting to answer this question, it is necessary to focus on how risk is apportioned between the contractual parties involved in a carriage of dangerous goods by sea. Both English law and certain international conventions and regulations are pertinent, such as the Hague/Hague-Visby Rules and the U.N. Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules). Therefore section 3 discusses these provisions and the definition of the term ‘dangerous goods’ both under the aforementioned legal instruments and other international regulations. section 4 will focus, first of all, on the shipper’s duties and liabilities5 for the shipment of such goods. Secondly, it will consider the carrier’s position regarding such cargoes and the circumstances under which the shipper is able to avoid liability. Lastly it will be discussed, whether the rights and most importantly liabilities of the shipper, may be transferred to other lawful holders of the bill of lading.

3 See AFM de Bievre, ‘Liability and Compensation for Damage in Connection With the Carriage of Hazardous and Noxious Substances by Sea’ (1986) 17 JMLC 61. 4 Meltem Deniz Güner-Özbek, The Carriage Of Dangerous Goods By Sea (Springer-Verlag 2008). 5 Tortious liability falls out outside the scope of our current discussion.

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3. Dangerous goods 3.1. An overview of the guidelines A considerable number of organizations, both in the national and international spheres, have established important guidelines dealing with the overseas transportation of dangerous goods in order to strengthen the International Convention for Safety of Life at Sea 1974 (SOLAS)6. The most prominent example of such an organization is the International Maritime Organization (IMO), which operates under the auspices of the United Nations.7 The IMO has a significant dual function regarding hazardous goods: firstly, as originator to introduce precautionary shipping measures which must be followed before, during and after the loading of a ship and also during its voyage; and secondly, to issue recommendations to U.N. member states regarding the regulation of cargo handling under the International Maritime Dangerous Goods Code (IMDG Code).8 The IMDG Code constitutes a uniform, international, advanced and standardised set of guidelines dealing with the basic principles of hazardous goods. These include matters such as stowage, segregation, marking, labelling, identification and consignment procedures, the documentation and packing of the dangerous goods and their classification into nine different classes. These are then subdivided further. Currently, the Code carries great weight and therefore it has been implemented by many countries, including the United Kingdom. In addition, it is worth mentioning that, although the IMDG Code can be traced back to 19659, the Code was significantly strengthened when it was incorporated into the SOLAS Convention and when it attained mandatory status for the signatory states on 1 January 2004.10 As part of English law the Merchant Shipping Act 199511, amongst other things, contains specific provisions with regard to dangerous goods; it imposes certain duties 6 Chapter VII is concerned with dangerous goods. 7 There are also many national organizations which have played a central role in strengthening SOLAS effect by making guidelines. For example the United Kingdom’s Department of Transportation has published important recommendations dealing with dangerous cargoes in its ‘Blue Book’. 8 LC Bulow, ‘Dangerous cargoes: the responsibilities and liabilities of the various parties’ [1989] LMCLQ 342, 343. 9 IMDG Code is updated every other year by the Maritime Security Council (MSC), a body which operates under the umbrella of the IMO. 10 International Maritime Organization, ‘IMDG Code including amendment 36-12, 2012 Edition’ (2012). 11 See also Merchant Shipping and Maritime Security Act 1997: it has specific provisions for marine pollution liability and compensation and will give statutory effect to the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996 (HNS) if and when it is ratified. See also HNS 2010 Protocol.

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upon the contractual parties and others.12 In this Act, as can be seen in section 87(5), dangerous goods are defined by safety regulations. Professor F D Rose pointed out that, in the United Kingdom, the Secretary of State has the authority to create and adjust the safety regulations as he sees fit. His primary responsibility is the safeguarding of the UK’s ships13; secondly, the protection and health of people aboard them; and thirdly, the implementation of international conventions and regulations on these matters.14 The statutory powers and the responsibilities of the carrier and the cargo owner that are addressed by these safety regulations are applied both before and during the vessel’s sea adventure. Under UK law, the safety regulations are governed by the Merchant Shipping (Dangerous Goods and Marine Pollutants) Regulations 199715, which pertains to vessels carrying bulk or packaged16 dangerous cargoes and marine pollutants17. The definition of dangerous goods under the Regulations is as follows: ‘…goods classified in the IMDG Code or in any other IMO publication referred to in these Regulations as dangerous for carriage by sea, and any other substance or article that the shipper has reasonable cause to believe might meet the criteria for such classification…’18. The Regulations, inter alia, impose many duties on shipowners, operators, shippers and others. These include adherence to particular formalities when loading dangerous goods or when declaring marine pollutants, the provision of sufficient packaging, labelling, marking and stowage of the cargo, and specific requirements regarding the carriage of dangerous bulk cargoes including written notification of its characteristics.19 In addition to the legal frameworks mentioned above, there are several international conventions of vital importance such as i) the Hague/Hague-Visby Rules and ii) the Rotterdam Rules, both of which enclose certain provisions for contracts 12 See ss 85 (1), 86, 87 (5), 313(1). 13 MSA 1995 sub-s 85(2). 14 FD Rose, ‘Cargo Risk: Dangerous Goods’ (1996) 55 CLJ 601. 15 SI 1997/2367. See also Merchant Shipping (Dangerous Goods and Marine Pollutants) (Amendment) Regulations 2006 (SD846/06). 16 Part II Regulations. 17 Reg 2(1). 18 ibid. 19 Regs 10, 11, 14, 15, 16, 20.

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involving the carriage of dangerous goods.20 Under the Hague/Hague-Visby Rules, the most detailed provision is Article IV(6) which confers certain rights to the carrier and lays certain liabilities explicitly on the shipper. Similarly, in Article 32 of the Rotterdam Rules a special rule exists for the regulation of dangerous goods. These statutory mechanisms will be examined in great detail in the next section. However, as will be discussed, the courts have generally leaned towards a liberal interpretation of the statutes. The reason has been the problematic concept of ‘dangerous goods’. Since this problem is fundamental to the implementation of the law, the question arises: What are dangerous goods? 3.2 The meaning of dangerous goods Certainly, various goods are inherently destructive and therefore hazardous. These include: explosives, radioactive products, petroleum, and chemicals, because they are able or likely to cause loss or damage to the vessel itself or to any other cargo being shipped on board the same vessel; these types of hazardous goods are not problematic and can be easily made compliant with regulations.21 These may fall within the meaning of ‘dangerous goods’. From a terminology standpoint ‘dangerous’, ‘harmful’, ‘hazardous’, ‘noxious’ are self-evident expressions. However, undoubtedly they are, to some extent, ambiguous concepts, with Professor F.D. Rose even describing them as ‘deceptive’22 since they lack a uniform legal definition. More specifically, the statutory sources and regulations contribute little since they merely tackle parties’ obligations and liabilities in relation to goods which are ‘fraught with danger or risk; perilous, hazardous, unsafe, injurious’23 rather than actually providing us with a specific definition of dangerous goods. Because of this vagueness, the courts have tried to fill the legal gap by establishing a litmus common law test24 that divides hazardous goods into two categories namely: i) physically dangerous goods, which are apparently safe but, depending on the surrounding circumstances can cause direct physical loss to the vessel and/or to other cargoes stowed on board the ship, and ii) ‘legally’ or non-physically dangerous goods, where the danger is not necessarily physical or 20 See also art 13 of the Hamburg Rules which is not going to be examined in our current discussion. 21 See IMDG Code. 22 See Rose (n 14) 605. 23 Stephen Girvin, Carriage of Goods By Sea (2nd edn, OUP 2011) 309. 24 Brass v. Maitland (1856) 6 E & B 470 QB 483 (Lord Campbell CJ), stated that dangerous goods mean any cargo which poses a danger to a ship, its crew and/or other cargo on board, including goods which by their very nature possess an inherent vice; also poorly packaged goods.

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extreme, but enough to cause economic loss or similar to the carrier or other cargo owners, by the detention, delay or seizure of the vessel. With regard to the former category, a good example is Micada Compania Naviera S.A. v Texim (The Agios Nicolas).25 In this case the vessel was chartered to load iron ore and the charterparty included a clause stating that ‘no livestock nor injurious, inflammable or dangerous goods (such as explosives, acids, calcium carbide, ferro silicon, naphtha, motor spirit, or any of their products) to be shipped’. In fact iron concentrate was the main cargo, as opposed to iron ore, and because of its moist nature, shifting boards should have been fitted but were not. The court found the charterers liable on the grounds that the iron concentrate was hazardous because it rendered the vessel unstable, and because of its nature, specific notice should have been given to the shipowner. To clarify, the contractual carrier’s lack of knowledge is considered an adequate criterion for the passing of liability to the shipper, since he failed to accurately notify the carrier. Thus, a shipper is not liable merely because he shipped dangerous cargo but because he failed to disclose the particular characteristics of the cargo. Of critical importance is the fact that, where it has been difficult to categorise a cargo as either harmless or inherently unsafe, courts have defined dangerous goods very broadly and have taken into account the apportionment of risk between the contractual parties rather than the particular characteristics of the relevant goods. This approach is of crucial relevance in cases where the shipper has described the nature of the cargo precisely and the carrier has accepted the contract subject to precautions, and therefore neither of the contractual parties can be found liable. The premise behind that point was embraced in the leading authority The Athanasia Comninos.26 In that case there was an inflammation of methane gas following the loading of a cargo of coal, which caused explosions and considerable damage to two ships. Mustill J, stated that despite the fact that ordinary coal cannot be classified as either safe or inherently dangerous (identification of a legal gap), in certain circumstances coal may discharge methane gas which may result in explosions and spontaneous combustion. Following Pearson J’s judgment in The Atlantic Duchess27, Mustill J held that the carrier was liable because although Cape Breton coal is slightly gassier than more common coal, 25 [1968] 2 Lloyd’s Rep. 57 QB. 26 The Athanasia Comninos & Gerorges Chr. Lemos [1990] 1 Lloyd’s Rep 277 QB 282. 27 Atlantic Oil Carriers v. B.P. Ltd [1957] 2 Lloyd’s Rep 55 QB 96 (Pearson J). The carrier is entitled to damages against the original shipper, if he successfully demonstrates that the danger that occurred from the cargo in question is ‘totally different, whether in kind or in degree approximate to kind’ from that notably associated with such goods, per. Likewise, according to Hutchison v. Guion (1858) 5 C.B. (N.S.) 149 C.C.P. the shipper will be a fortiori liable if he has misrepresented the carrier.

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combustion is an inherent and common risk associated with all forms of coal. Having consented28 to the shipment of this type of cargo, the carrier implicitly acknowledged the capability of such cargo to generate danger; he could only recover indemnity if he could prove that the coal in question was more gassy and apt to explosion than a common coal. In The Fiona29, the Court of Appeal applied the well-established Mustill J’s test in The Athanasia Comninos and held that the carrier had not given his consent for the carriage of this particular cargo as neither the master nor his crew had knowledge of the characteristics of the cargo in question. Basically, that cargo was different from the fuel oil usually carried in the maritime industry in the sense that its flash-point was higher than normal and therefore it was necessary for a reasonable carrier to take special precautions to carry it securely. Similarly, Evans J in The Amphion30, stated that a cargo of fishmeal, which had been ignited during the discharging operations, was hazardous because it had not received antioxidant treatment prior to loading, a process that could have reduced the cargo’s harmful effects, even if it did not totally eliminate it. Lastly, the Court of Appeal in The Berge Sund31 acknowledged that danger may arise when the holds of the ship have been contaminated by goods from a preceding voyage, resulting in damage to subsequent cargoes. It is worth emphasizing that the second category, which is associated with nonphysically dangerous goods, reflects a broader interpretation of the word ‘dangerous’ than the first, and is, in fact, rather more problematic. In Mitchell, Cotts & Co. v. Steel Bros & Co. Ltd32 the court extended shippers’ liability to cover cargoes that have no physically temperamental characteristics. In essence, unknown to the shipowners, the relevant cargo of rice could only be discharged at the contractual port with the permission of the British authorities, which was never actually obtained by the charterers. In accordance with Atkin J, any unlawful cargo which may cause the detention, seizure or delay of the ship was ‘precisely analogous to the shipment of dangerous cargo’33.

28 Consent is regarded as an acceptance of the relevant risk. 29 Mediterranean Freight Services v. BP Oil International [1993] 1 Lloyd’s Rep 257 QB; [1994] 2 Lloyd’s Rep 506 (CA). 30 General Feeds Inc. v. Burnham Shipping Corporation [1991] 2 Lloyd’s Rep 101 QB. See also Compania Sud Americana de Vapores SA v. Sinochem Tianjin Import & Export Corp (The Aconcagua) [2009] EWHC 1880 (Comm) QB; [2011] 1 Lloyd’s Rep 683 (CA). 31 Sig Bergessen D.Y. & Co. v. Mobil Shipping & Transportation Co. [1993] 2 Lloyd’s Rep 453 (CA). 32 [1916] 2 KB 610. 33 ibid 614; see also Transoceania Societa Italiana di Navigazione v. H.S. Shipton & Sons [1923] 1 KB 31, 44 (Miccardie J). Cargo is not legally dangerous merely because a delay was caused by the dysfunction of the machineries and appliances at the port of discharge.

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Moreover, in Chandris v. Isbrandtsen-Moller Co. Inc.34 there was an express clause into the charterparty forbidding the delivery of ‘acids, explosives, arms, ammunition or other dangerous cargo’. Devlin J, whose decision was subsequently affirmed by the Court of Appeal, declined to qualify the words ‘other dangerous cargo’ in accordance with the eiusdem generis rule and he held the charterers liable under common law for fundamental breach of the contract for the shipment of dangerous goods, since economic loss had resulted from delay in handling other cargoes stowed on the same vessel. Akin to this approach, in The Giannis NK35, their Lordships, by accepting the contention of Lord Lloyd of Berwick, confirmed that the case of an infested cargo had fallen into the ambit of Art.IV(6) of the Hague Rules; they did not apply the eiusdem generis rule and concluded that the word ‘dangerous’ should not be qualified with the plain words ‘explosive or inflammable’ given in the Rule. Thus interestingly, the House of Lords adopted a wider interpretation of Art.IV(6), without reading it literally and without restricting it to goods capable of causing direct damage. In this particular case the ground-nut cargo on board the ship was infested by Khapra beetle (irogoderma granarium everts). Clearly that infestation did not directly imperil either the vessel or the other cargoes shipped on board. However, the quarantine and phytosanitary regulations at the port of discharge obliged the shipowner to dump at sea all the cargoes on board the vessel. This was because the beetle is a voracious consumer of foodstuffs and might have infested the other cargo pellets, a possibility that actually made them indirectly unsafe. Accordingly, at first sight it seems plausible to conclude that the Hague/Hague-Visby Rules are a legal device with quite similar functions to the common law in this area. However, it should be noted that the House of Lords’ decision appears to be limited to cargoes capable of causing direct physical damage or loss to the ship or to other cargoes on board, and may not encompass goods that are physically harmless but where delay is caused by the operation of some local law.36 Nevertheless, where the goods are not ‘dangerous’ within the meaning of Art.IV(6), a claim may still be advanced under common law indemnity, which undoubtedly has gone beyond the Hague/Hague-Visby Rules with regard to the concept of dangerous

34 [1951] 1 KB 240. 35 Effort Shipping v. Linden Management (The Giannis NK) [1998] 1 Lloyd’s Rep 337 (HL). 36 ibid 341. Lord Lloyd of Berwick refused to comment on whether art IV(6) applies to ‘legally’ dangerous goods. See also Bunge SA v. ADM do Brazil Ltda (The Darya Radhe) [2009] EWHC 845 (Comm); [2009] 2 Lloyd’s Rep 175 QB (the cargo which was loaded along with live rats was not regarded dangerous under the Hague Rules because it was not posed any threat to the vessel or to other cargo on board; nor the local law rejected the cargo).

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goods.37 Despite the fact that the Rotterdam Rules are a modern Convention, again no definition for ‘dangerous goods’ is provided and it can be argued that when these Rules apply38, the given definition for dangerous goods can easily be found in common law. However, Article 32 of the Rules introduces a brand new concept, namely, ‘danger to the environment’. This provision aims to cover situations where, even though the cargoes do not cause any direct loss or damage to the carrier, nevertheless they are considered ‘legally’ dangerous ‘by reason of the financial loss that the carrier may suffer by any public authority in carrying them due to the threat they impose to the environment’39. However, as ‘the environment’ is an ambiguous concept, it still remains open for the courts to decide on that issue. Furthermore, the proviso ‘nature’ of the Hague/Hague-Visby Rules under the Rotterdam Rules has become ‘nature and character’, possibly to cover goods which are not ‘naturally dangerous may so become because of its being off-spec or contaminated’40. Lastly, reference should be made to the United States’ law regarding the definition of dangerous goods; U.S. courts have followed a similar line to their English counterparts.41 Nevertheless, the U.S. position in relation to the duties and responsibilities of the contractual parties involved in the transportation of sea of a dangerous cargo obviously differs from the English position. 4. The obligations and liabilities of parties in contracts of carriage by sea that involve dangerous goods 4.1 The nature of shippers’ duties and liabilities 4.1.1 The position of common law With the exception of contracts that include specific terms42 negotiated by con37 The Giannis NK [1994] 2 Lloyd’s Rep 171 QB 180, 181 (Longmore J). However, when a cargo is dangerous within the meaning of art IV(6), clearly the common law indemnity will be supplanted. See The Fiona [1993] 1 Lloyd’s Rep 257 QB 267, 268 (Diamond); The Giannis NK [1994] 2 Lloyd’s Rep 257 (CA) 587 (Hirst LJ). 38 The only country which has ratified this Convention is Spain. 39 Simon Baughen, Shipping Law (5th edn, Routledge 2012) 548. 40 Yvonne Baatz, Rotterdam Rules: A Practical Annotation (5th edn, Routledge 2009) ch 7. 41 See Sucrest Corp. v M.V. Jennifer 1978 AMC 2520; 455 F Supp 371 (Maine, ND). 42 For commercial and practical purposes some standard forms (eg clause 4(a) of NYPE 1993 lines 4945) have been created, both for charterparties and the bills of lading, which contain specific provisions and prohibitions for the shipment of dangerous goods. For further discussion see Girvin (n 21) 490-91.

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tractual parties, every contract of affreightment – including those involving dangerous goods – contains certain duties (warranties) implied by statute or custom. Indeed, they are central to the contract and are therefore explicitly binding for the parties. Moreover, in addition to the customary and statutory implications of those terms, the courts, when it is necessary, have the discretion to assume that such terms are designed to maximise business efficiency and interpret the contract accordingly. In order to fulfil this aspect of the contract, certain duties are imposed on the part of the charterer43, who enters into a contract with the shipowner44, or the shipper who is a person involved to a contract of affreightment45. From the shipper’s perspective, as shown in the previous section, he is under the implied (possibly innominate) common law duty46 not to ship goods of dangerous character or dangerously packed, unless notification has been given to the carrier or his agent of such hazards. Any failure to do so makes the shipper strictly liable. In addition, the shipper is under the obligation to take all necessary steps in order to reduce any risk of loss or damage which may be caused by the shipment of such a dangerous cargo. This will be fulfilled by complying with special regulations; otherwise he will again be found strictly liable.47 The essential purpose behind the aforesaid duties of the shipper is self-evident. Notionally and practically, the shipper is the first party in the contract of carriage, directly connected with the goods to be shipped. He has detailed knowledge of the intrinsic factors and characteristics of the goods, a fact that renders him an exclusive sphere of influence regarding the carrier’s contractual performance. Hence these duties gives any reasonable carrier the opportunity to appreciate the nature of the risks he is undertaking and therefore the right to either decline to transport the dangerous cargo or the ability to take the appropriate precautionary measures to protect his vessel and the goods of other cargo owners aboard it. 43 It should be referred that since the charterer enjoys absolute control of the ship for commercial purposes, e.g. discretion as to the goods to be shipped, the shipowner is entitled to be reimbursed for physical damage to the ship occurred by the charterer’s loading of dangerous cargo. Deutsche Ost-Afrika Linie v. Legent Maritime Co [1998] 2 Lloyd’s Rep 71 QB. For this paper’s purposes, reference to the shipper will also include charterer. 44 The charterer may be the original shipper or not. Despite the fact he is not the actual shipper, it has been held that he may be considered that he is. This is the case when the charterparty includes an agreement to apprise the carrier at any moment that hazardous cargo was shipped. See Alston v Herrin (1856) 11 Ex 822 CE. 45 Either in the form of a bill of lading or a charterparty. The common law obligation ‘is capable of applying, in appropriate circumstances, to all contracts for carriage of goods by sea’. See Athanasia (n 27) 282 (Mustill J). 46 Two other shippers implied obligations are to nominate a safe port and to load the vessel within a reasonable time. 47 See The Giannis NK (n 32).

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The courts, in order to ascertain the shipper’s absolute obligation, focused on the question of whether or not the shipper’s liability for the shipment of dangerous goods was strict, an issue which caused a great deal of controversy. It appears that, the origin of a shipper’s liability can be traced back to Charles Abbott’s seminal work. He stated: ‘[T]he hirer of anything must use it in a lawful manner, and according to the purpose for which it is let [and] the Merchant must lade no prohibited or uncustomed goods, by which the ship may be subjected to detention or forfeiture’.48 Likewise, in Williams v East India Company,49 Lord Ellenborough CJ held that in order for the loading of dangerous goods to be a wrongful act, the defendant shippers had to be ‘conusant of the dangerous quality of the article put on board’.50 It is important to emphasize that in the leading authority of Brass v Maitland51, Abbott’s statement and Williams’s verdict were not only cited, but the authority went one step further regarding the standard of the shipper’s liability. To be more specific, Lord Campbell CJ and Wightman J treated the matter as a question of apportionment of risks. They were of the view that a shipper’s liability should not be restricted merely to cases where the shipper has knowledge of the hazardous qualities of the cargo, as ‘ignorance [deliberate act]...can be no excuse for putting on board without notice the dangerous goods insufficiently packed’52 and therefore, they found the shippers ex contractu strictly liable to the carrier. The ratio decidendi of that finding was the following: ‘[I]f the plaintiffs and those employed by them did not know and had no means of knowing the dangerous quality of the goods which caused the calamity, it seems most unjust and inexpedient to say that they have no remedy against those who might easily have pre-

48 Charles Abbott (Lord Tenterden), A Treatise of the Law Relative to Merchant Ships and Seamen (5th edn, Shaw & Sons 1901) 270. 49 (1802) 3 East 192. In this case a package of flammable varnish was shipped aboard the vessel by the chief mate without notification of dangerous qualities. 50 ibid 200. 51 (1856) 6 El & Bl 470. In this case a consignment of bleaching powder (comprising mainly chloride of lime) was shipped in casks aboard the plaintiff’s ship. Due to inadequate packaging, the consignment mixed with and caused damage to other cargo and injury to the crew. 52 ibid 486.

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vented it...[I]t seems much more just and expedient that, although they were ignorant of the dangerous qualities of the goods, or the insufficiency of the packing, the loss occasioned by the dangerous quality of the goods and the insufficient packing should be cast upon the shippers than upon the shipowners’.53 To clarify, the finding was that the implied common law duty of the shipper is absolute, his liability is exclusive and is no way dependent on his knowledge of the nature of the goods. However, Crompton J, delivering the minority judgment, vigorously deviated from the abovementioned opinion by reasoning that ‘it is very difficult to hold that the shipper can be liable for not communicating what he does not know’54, particularly where there was no precedent establishing an absolute obligation on the part of the shipper. To further enhance his argument, he contended that a duty may imply that the shipper will exercise and take appropriate care and diligence not to deliver cargo, that is apparently safe, but actually hazardous, without giving such a notification, and any want of care in the course of shipment in not communicating what he was obliged to communicate may amount to negligence, according to which he will be liable.55 In other words he supported the view that the shipper’s liability must be fault-based. It is of fundamental importance to emphasize that, although Crompton J’s reasoning found some support in several first instance cases56, as will be discussed below, recent authorities seem to have put this uncertainty to rest with the prevalent view that favours Lord Campbell CJ’s absolute obligation verdict.57 4.1.2 The Hague/Hague-Visby Rules The Hague Rules, and their successors the Hague-Visby Rules, were signed in Brussels in 1924 and 1968 respectively by the foremost maritime nations and were incorporated into UK law by the Carriage of Goods by Sea Acts 1924 and 1971 respectively. The main objective of these international conventions is to protect shippers from the monopolistic practices of the dominant shipowners, by establishing unifor53 ibid 483. But see Sucrest (n 42), under which if the shipper is ignorant of the cargo’s dangerousness, he is excused. 54 ibid 491. 55 ibid 493. 56 See Farrant v Barnes (1862) 11 CB (NS) 553, 563, 142 ER 912, 916, Mitchell Cotts & Co Ltd v Steel Brothers & Co. Ltd. [1961] 2 KB 610, 614 (Atkin J). 57 See The Athanasia Comninos & Georges Chr. Lemos [1990] 1 Lloyd’s Rep 277 (Mustill J).

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mity in the contractual terms in relation to contracts of carriage ‘covered by a bill of lading or any similar document of title’58. However, as will be shown below, that uniformity in its absolute sense has not been achieved in relation to the shipment of dangerous goods, as various national courts have construed certain matters differently. Although the two Conventions have several differences, the modifications made to the Hague Rules by the Visby Protocol, have not affected the basic principle governing the contractual parties’ liabilities and rights associated with dangerous goods. In that respect the two regimes are identical. As has been stated above, Article IV(6) is the piece of legislation that is fundamental to dealings involving dangerous goods. In essence, inter alia, the first sentence of that proviso lays down an indemnity of the carrier against the shipper, but clearly does not impose any absolute obligation on the shipper to notify the carrier. This duty runs parallel with common law, and on that basis replicates the strict liability established under it. To support that argument it is essential to examine in depth, the effect of the much-debated issue, namely the relationship between Article IV(6) and Article IV(3) of the Hague/Hague-Visby Rules, which has attracted two different sets of views. A literal reading of Article IV(3) indicates that, at the one end of the spectrum the shipper appears to be liable only if he is at fault or negligent, and according to this view clearly his liability is restricted under Article IV(6); this principle has been adopted by U.S. law. At the other end of the spectrum it has been suggested that Article IV(3) is not intended to discharge the shipper from his liability in accordance with Article IV(6) regarding the absolute guarantee he provides that the cargo loaded is not dangerous.59 This concern was briefly discussed in The Athanasia Comninos, but Mustill J left the conclusion open. More recently, in The Giannis NK60, the dispute was settled beyond doubt. In the Court of Appeal, Hirst LJ refused to accept the shipper’s allegation that based on guidance by the U.S.61 and Canadian authorities62, Article IV(3) qualified the liability imposed on the shipper by Article IV(6). Judged by this 58 See art 1(b). 59 Raoul Colinvaux, Carver’s Carriage by Sea, vol 2 (13th edn, Stevens Ltd 1982) para 514, 515. 60 [1996] 1 Lloyd’s Rep 577, 582. 61 Serraino v United States Lines (1965) AMC 1038; General S.A General Trades Enterprises and Agencies v Consoricio Pesquerio Del Peru, 1974 AMC 2342. It is noteworthy that none of these cases scrutinized the relationship between the two articles. However, in the Senator Linie GmbH & Co v Sunway Lines Inc 291 F 3d 145; [2002] AMC 1217 (2nd Circ, 2002), in which it was considered in detailed basis the interplay between the two articles, it was held that the shipper is strictly liable for his failure to notify the carrier. 62 Heath Steel Lines Ltd v The Erwin Schroder [1969] 1 Lloyd’s Rep 370; The Stylianos Restis [1974] AMC 2342.

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criteria, in the appellate case63, when the House of Lords failed to find an adequate answer on this matter in the travaux préparatoires, they turned to examine the historical background of the Hague Rules, seeking a contextual approach. On that basis, Lord Steyn stated that in the absence of any specific indication of the actual or constructive knowledge of the shipper in Art.IV(6), this Rule must be regarded as a free-standing provision, in the sense that it creates free-standing rights and obligations which are neither expressly nor by implication subject to fault-based liability under Art.IV(3).64 Moreover, the Lordships unanimously ruled that, despite the fact that the claim was regulated by the Hague Rules, the shipper cannot be relieved from the absolute liability imposed by common law. In this regard, Lord Lloyd expressed the obiter view: ‘…the liability of a shipper for shipping dangerous goods [under] common law, when it arises, does not depend on his knowledge or means of knowledge that the goods are dangerous’65. As a consequence, the defence under Art.IV(3) can rarely be triggered by the shipper in matters of dangerous goods. Nonetheless, the U.S. view may be right if we take into account that U.S. COGSA 1936 is regarded as a negligence-based statute.66 Lastly, it may be true to argue that, notwithstanding that the House of Lords has established a degree of coherence between the implied common law undertaking of the shipper not to ship dangerous cargo without disclosure and the indemnity legal instrument of the Hague/Hague-Visby Rules, according to some legal academics the House of Lords’ reasoning still casts some doubts.67 4.1.3 The Rotterdam Rules The Rotterdam rules are a modern international convention. Its main purpose is to replace or amend many provisions of the Hague/Hague-Visby Rules and the Hamburg Rules. Its title clearly indicates that the convention applies to contracts of car63 [1998] 2 WLR 206 (HL). 64 ibid 221-223. But Lord Cooke, who agreed with the outcome, criticized the ‘free-standing’ term. He applied the maxim generalia specialibus non derogant and therefore, on a whole reading of the Rules he concluded that art IV(6) takes priority over art IV(3) 224. 65 [1998] AC 605 619. It should be pointed out that this statement was not solely obiter but was a matter of the construction of the Rules. 66 See Excel Shipping Corporation v. SeaTrain International SA 584 F Supp 734 (1984). 67 See Sukhnindar Panesar, ‘The Shipment of Dangerous Goods and Strict Liability’ [1998] ICCLR 136.

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riage and it designates the duties and obligations both for the shipper and the carrier. It has been submitted that although its substance is not new, it is a more comprehensive statutory legal instrument, and also the obligations placed on the shipper are more onerous than its predecessors.68 However, as regards dangerous cargo, none of the provisions contained in this convention significantly increase the shipper’s liability in relation to the other conventions. Certain important points arise out of Art.32 that need to be examined in conjunction with other Articles in the Convention, especially with Art.30. Generally speaking, the shipper’s and documentary shipper’s69 obligations and liabilities are dealt with in Chapter 7 of the Convention in Articles 27-29 and 31-32. Accordingly it is divided into two mini-regimes, namely i) the fault-based liability (Art 30) and ii) the special liability (Art.32) regimes for dangerous goods.70 Clearly, the special rule of Art.32 does not modify the shipper’s liability under either English common law or the Hague/Hague-Visby Rules. The primary mandatory duty of the shipper under Art.32 is to warn the carrier or the performing party71 in a ‘timely manner’, before its delivery, of the dangerous nature and character of the cargo. Thus, if the shipper fails to give such notice or the tendered notice is inadequate72 or late, by applying The Giannis NK ruling, he will be held strictly liable. Additionally, although under the Hague/Hague-Visby Rules it is unclear whether Art.IV(6) covers ‘legally’ dangerous goods, Art.32(b) explicitly imposes the duty of marking and labelling on the shipper in compliance with certain legal requirements (law, regulations or other requirements) at all stages of the voyage.73 Again if the shipper fails to fulfil the marking duty, he will be strictly liable. Following the same line as the English court’s interpretation of the Hague/ Hague-Visby Rules in The Giannis NK, the shipper cannot be exonerated for breaching Art.32. As the result, the absence of fault on his part, under Art.30(2), and mechanism of apportioning liabilities, under Art.30(3), will be inapplicable. Nonetheless, for our purposes, it should be pointed out that, one of the most controversial matters that has generated considerable discussion is whether the shipper’s liability for ‘loss or damage’ under Art.30 involves liability for economic loss, including loss caused by 68 Anthony Diamond, ‘The Rotterdam Rules’ [2009] LMCLQ 445, 491. 69 See Art. 1(9). 70 Also art 31 provides for strict liability. 71 Art. 1(6). 72 Art. 30(2). 73 But this provision does not include legal requirements that preclude the goods being unloaded at the discharging port. Instead these types of goods will fall under the fault-based liability regime of art 29.

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delay, sustained by the carrier. To answer this question, following the process adopted in The Giannis NK by their Lordships, it is of great importance to review the drafting history of the Convention. Its first draft did not voluntarily enclose any specific provision regarding the shipper’s liability for dangerous goods. Later on, the term ‘delay’ was offered in square brackets, indicating that the matter remained at issue.74 In the 2005 meeting of the UNCITRAL Working Group III this issue was vigorously discussed, and thereafter it was proposed that the shipper’s liability for delay should be retained subject to the adoption of a recognised level of limitation. However, due to great tension between the delegates of shippers and of carriers, it was impossible to reach an acceptable compromise. Therefore, in the final draft the term ‘delay’ was deleted, keeping that matter outside the scope of Chapter 7.75 In this regard, it seems unlikely that financial loss is covered by Art.30(1) or any claim on that respect, a fact that is supported by the clear wording of Art.17(1) regarding the carrier’s liability, according to which ‘delay’ is definitely included alongside ‘loss’ and ‘damage’.76 Overall, due to the complexity of this issue the Woking Group’s reports, the travaux préparatoires, do not appear to provide a useful ‘bull’s eye’77. Therefore, it is open to the domestic courts to regulate de novo on that issue. 4.2 The carrier 4.2.1 The position of common law The common law carrier under the contract of carriage is acting as an ‘insurer’78 of the contracted cargo during the period of his responsibility – the so called ‘tackle to tackle’ rule- and he remains absolutely liable for any incident that occurs during the voyage.79 However the carrier may avoid liability if he proves that the loss or accident was caused by an excepted peril of the sea.80 Moreover, despite his obligations under the express terms in the contract, he also has certain duties-warranties implied 74 See A/CN.9/WG.III/WP 56; A/CN.9/WG.III/WP.101. 75 See A/CN.9/WG.19/621, paras 180(b), 183, 184. 76 See also Arts. 20, 22 which merely states for loss or damage; art 60 Diamond is of the view that on the plain reading the words ‘loss or damage’ obviously includes financial loss, see (n 71). But see Francesco Berlingieri, ‘Revisiting the Rotterdam Rules’ [2010] LMCLQ 583. 77 Baughen, ‘Obligations of the shipper to the carrier’ (2008) 14 JIML 555. 78 Forward v Pittard (1785) 1 TR 27, 33 (Lord Mansfield). 79 Coggs v Bernard (1703) 92 ER 107, 112 (Sir Holt CJ). 80 The defences of common law available to the carrier are: the Act of God, act of the Queen’s enemies, inherent vice of the cargo and a general average sacrifice.

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by common law. These are: to provide a seaworthy ship, to take reasonable care of the goods during the voyage and also during the loading and discharging process, to proceed with reasonable dispatch and not to deviate unreasonably or delay the agreed voyage. In turn, the common law defences cannot be used by the carrier and consequently he will not be entitled to recover indemnity from the shipper, if it is proved that the excepted peril could have been avoided by the exercise of reasonable care or where the operative cause81 (causa proxima) of the loss or damage occurred due to the ship’s unseaworthiness82, or a fundamental breach of contract of affreightment.83 For our discussion purposes, it is important to emphasize that the seaworthiness warranty is absolute in nature and does not rest on a finding of knowledge or negligent conduct, in the sense that the carrier will be found strictly liable despite the fact he is not at fault or negligent. Principally, the contractual carrier is the shipowner who is entitled to sue the shipper and is the only person who can discharge him from his common law absolute duty with regard dangerous cargo.84 Hence, first of all the shipper will be relieved from his absolute common law liability of disclosure, if the carrier is85 or ought to be reasonably aware of86 the dangerous nature and characteristics of the cargo; this is regarded as consent. On that basis, if the carrier agrees to carry goods whose hazardous characteristics are well known, this is also regarded as consent.87 Secondly, the shipper may also be discharged, if he proves that the loss or damage was partly caused by the negligence of the carrier. So, it appears that the duties of the contracting parties are interrelated and it follows that the shipper’s discharge from his common law undertaking depends on the carrier’s consent, knowledge and/or negligence. The knowledge of the carrier is subdivided into two sub-categories namely the 81 But according to Alston (n 46) 830, if the cause of the loss or damage is remote (causa sine qua non), the carrier cannot avoid liability by relying on the common law exception. 82 Colinvaux, Carver: Carriage by Sea, vol 1 (13th edn, Stevens 1982) 109; Burges v Wickham (1863) 3 B & S 669. 83 JF Wilson, Carriage of Goods By Sea (5th edn, Pearson 2001) 279. 84 Nonetheless, a charterer may be entitled to sue the shipper, when by signing the bill of lading in his own name, the bill of lading constitutes a charterer’s bill of lading. In fact he becomes the contractual carrier instead of the shipowner e.g. in the case of a demise (or bareboat) charter, under which the master has signed the bills of lading acting as the agent of the charterer. See Bernard and others, Scrutton on Charterparties and Bills of Lading (20th edn, Sweet & Maxwell 1996) 69, 80. 85 In Acatos v Burns (1878) 3 Ex D 282 (CA), the court found the carrier liable stating that it is reasonable to impute knowledge to the carrier, when he had full opportunity to identify the dangerous characteristics of the cargo. 86 In Ministry of Transport v Lamport and Holt [1952] 12 Lloyd’s Rep 371, it was evidenced that the chief officer had observed on quay that some damage occurred to the casks. 87 See The Athanasia Comninos (n 27).

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actual and the constructive.88 Actual knowledge is the information regarding the intended contractual cargo that has been made known to the carrier though the shipper’s statements. These statements take place during the contractual negotiations of the parties and prior to the conclusion of the contract. Moreover, actual knowledge involves facts that the carrier or his agent was cognizant of at that time, from their general professional practice. If, for instance, the carrier is asked to carry a cargo which has been regularly transported in the recent past, he is presumed to have knowledge of some, if not all, the characteristics of such a cargo. Constructive knowledge, on the other hand, concerns information that the carrier or its agent is expected to have, even if he does not, because of his obligation to use reasonable means to determine the true nature and characteristics of the goods. In this regard, as was shown in the previous chapter, many cargoes are customarily loaded after taking specific precautionary measures. This issue is vital because some goods are potentially dangerous if they are not handled correctly.89 Thus, it is commonly recognised that the carrier bears the risks90, where it is possible that the loss or damage can be circumvented by taking precautionary measures appropriate to the specific goods. However, if the carrier fully complies with such measures the liability for loss or damage will be vested back to the shipper.91 It is important to note that the carrier, in order to take such precautions, is also required to consult IMO publications, manuals for cargo handling and other materials regarding the characteristics of cargoes which are the normal reference material for interested parties.92 On that point an important question arises: what is the standard of constructive knowledge of a ‘reasonable carrier’? Constructive knowledge depends on the facts of each case and is based on the ‘reasonable professional’ concept which is a judicial invention. This notion becomes highly relevant when there is a breach of standards of care and covers every aspect of law (e.g. tort, contract or criminal). Hence, the standard of constructive knowledge imposed on the carrier is that of an ordinary, experienced, prudent, competent and skilful carrier and not that

88 ibid 285. Otherwise there would be a premium on ignorance. 89 See The Amphion (n 31). See also Cooke and others at 85.431-5. 90 That is the situation where the carrier has not contracted out to exclude shipment of dangerous cargo: The Domald [1920] P 56. 91 William Tetley, Marine Cargo Claims (3rd edn, Sweet & Maxwell 1998) 466. 92 See for example Cargo Stowage & Securing (CSS) Code 2011 Ed (IMO). That obligation arises due to MSR 1997 see (n 15).

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of an expert chemist, and should not require investigations unfamiliar to ordinary maritime practice.93 4.2.2 The Hague/Hague-Visby Rules Art.IV(6) obviously envisages two different contexts. The first is that the carrier, his master or his agent did not consent94 to carry dangerous goods with the full knowledge95 of their nature and character; the second is when he did consent. In both situations the carrier enjoys the same rights in order to avoid the danger - he is entitled to land, to destroy or render the relevant dangerous goods innocuous96- and also to some degree of immunity, namely not to pay compensation to the shipper when these rights are exercised. However, there are two important differences between the two cases. First of all, under the second set of circumstances in which, the carrier, his master or agent has consented to the carriage, obviously he will be prevented from claiming indemnity under Art.IV(6) against the shipper. Nonetheless, he may still advance a claim, on some other legal basis (e.g. express provision in the charterparty).97 Their second difference lies in the fact that in the second set of circumstances, it is explicitly stated that the carrier may be liable only for a general average contribution, if any98. This explicit provision makes clear that in the first set of circumstances the Rules intend to exclude such claims. Moreover, the phrase, ‘directly or indirectly arising out of or resulting from such shipment’, which is used in the first sentence of the Article, suggests that a wide test

93 See The Athanasia (n 27) 284 (Mustill J). See also Coghlin and others (eds), Time Charters (6th edn, Routledge 2008) 9.12 94 Consent of the carrier is regarded as an acceptance of the risk to carry the dangerous cargo and clearly must be given by him, or the master or agent who are authorised to do so. See The European Enterprise [1989] 2 Lloyd’s Rep 185. 95 According to that phrase it follows that if the carrier has actual or constructive knowledge, the shipper may avoid liability if he proves such knowledge. The carrier’s standard of knowledge is capable of interpretation in terms of common law principles, as stated above. See Francesco Berlingieri, ‘A comparative analysis of the Hague-Visby Rules, the Hamburg Rules, and the Rotterdam Rules’ (General Assembly of the AMD, Marrakesh, 5-6 November 2009) 20. 96 It has been suggested that the carrier seems has an absolute discretion to exercise those rights. See Julian Cooke and others, Voyage Charters (3rd edn, Taylor & Francis 2007) 85.443. 97 See The Chandris (n 36). 98 In this regard, clearly the position in common law is different. The carrier is entitled to damages both for financial and physical loss resulting from the shipment of dangerous goods.

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of causation is applied and probably excludes the rules for remoteness of damages.99 This is despite the carrier’s immunity, and it equips him with an additional cause of action against the shipper. Thus, when the carrier has not consented to the carriage of the relevant dangerous cargo and once an appropriate causal link is established, the shipper is liable ‘for all damages and expenses’.100 It should be emphasized that the carrier is not entitled to be indemnified under Art.IV(6), if he has breached his primary obligation under Art.III(1). On that basis, it should be emphasized that the absolute common law duty of seaworthiness has been replaced, by the statutory abrogation, with a duty to exercise due diligence under Art.III(1) of the Hague/Hague-Visby Rule, which is subject to exceptions under Art.IV(1). Hence it is of fundamental importance to examine the relationship between Art.IV(6) and Art.III(1). Primarily, their relationship was scrutinized by the Court of Appeal in The Fiona.101 In essence, it was considered that the duty of the carrier before, and at the commencement of the sea adventure, to exercise due diligence, breach of which would relieve the shippers from their liability. On the facts of the case, it was held that although the cargo was of dangerous character and actually had contributed to the explosion, the shipowners were liable, because their failure to clean out a tank properly amounted to unseaworthiness and that was the dominant cause of the loss. Accordingly, Art.III(1) is an overriding principle, breach of which renders Art.IV(6) inapplicable; the carrier is not entitled to invoke indemnity clauses when they are guilty of negligence.102 It is of fundamental importance to outline that the Court of Appeal, stated that the carrier could have avoided liability under Art.III(1), if he could have established a due diligence defence under Art.IV(1). This position clearly contravenes with the common law absolute seaworthiness warranty imposed on the carrier, a matter I will return later on. Also, in the same case it was held that the one year time limit under Art.III(6) did not operate to prevent the shipper from invoking breaches by the carrier a fact that supported the overriding effect of Art.III(1) . Correspondingly, The Kapitan Sakharov103 not only confirmed The Fiona’s approach, but also went one step forward. The Court of Appeal made clear that in an event of concurrent causes of loss or damage, it is not necessary for the shipper in triggering the application of Art.III(1), 99 Richard Aikens and others, Bills of Lading (1st edn, Routledge 2006) ch 10; See The Fiona (n 30) 522 (Hoffmann LJ). However, the absence of those words in Art.30 of the Rotterdam Rules, may indicate the intention of the drafters to leave national courts to apply the ordinary rules of remoteness and causation. 100 The position in Rotterdam Rules is exactly the same. 101 See (n 30). 102 ibid 522 (Hoffmann LJ). 103 Northern Shipping v. Deutsche Seereederei [2000] 2 Lloyd’s Rep. 255.

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to prove that the carrier’s negligence was the dominant cause of such a loss or damage, but rather to prove that it was solely an effective cause. Nonetheless, although the carrier was held partly liable under Art.III(1) for the consequential damage caused by the fire spreading to the ignitable cargo which was negligently stowed below deck, he was not found liable for the damage caused by the fire; the shipper was found liable under Art. IV(6). Consequently, taking the two cases together, the principle establishes that the parties’ risks are distributed proportionally. On the one hand, the shipper remains strictly liable for the shipment of dangerous cargo without notice, this appears to be a fair judgement since, as discussed, he is the first party in the contract who can ascertain the characteristics of the goods. At the other end, the carrier is under the overriding duty to provide a seaworthy vessel but he will not be liable for those losses for which he is not responsible. Moreover thereto, it seems that the reasoning of the authorities set forth hereinabove, is not limited only to cases of unseaworthiness, but it also covers all type of negligence. This includes Art.III(2), which allows the carrier to be indemnified if his breach falls within the list of exceptions provided in Art.IV(2). An illustrative case on that point is The Aconcagua104 in which the carrier was entitled to invoke Art.IV(6). It is likely that. this case has created great concern as it places a heavy burden on shippers who are required to prove that a carrier’s negligent stowage amounts to unseaworthiness. It is not sufficient to show that the manner of stowage alone created a possible risk of casualty. When the rulings of the abovementioned authorities are taken into account, a troubling question arises: ‘What is the effect of the shipowner’s negligence on his ability to advance a claim against the shipper under the common law obligation, which appears to be framed as a simple implied term, rather than as an indemnity?’105 The issue was considered in The Kapitan Sakharov. Clarke J stated that a carrier’s claim under common law against the shipper, as opposed to the indemnity claim under Art.IV(6), should be met by a cross-claim regarding the shipper’s breach of Art. III(1), and both claims would both claims would become circular in action and therefore they will fail.106 It has been submitted that this problem can be solved either by causation analysis or under the fault-based regime of the Law Reform (Contributory Negligence) Act 1945.107

104 See (n 31). 105 See Baughen (n 80). 106 Northern Shipping (n 105) 269 (Clarke J). 107 For further analysis see Baughen (n 80); see Cook and others (n 99) 85.456.

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4.2.3 The Rotterdam Rules Under the Rotterdam Rules, the power to dispose of dangerous goods which is enjoyed by the carrier under Art.IV(6) of the Hague/Hague-Visby Rules, is maintained under Art.15. Additionally, the dangerous cargoes may be refused for shipment, and either discharged or destroyed by the carrier without suffering any liability for breach of Art.11 of the Rules. Moreover, unlike the Hague/Hague-Visby Rules and common law under ‘which a prudent shipowner, seeking to inform himself of the correct method of carrying could have been reasonably expected to become aware’108, the position of the Convention appears to be that the shipper, in order to be discharged from his statutory duty of disclosure under Art.32(a), must prove actual knowledge on the part of the carrier. This is because Art.32 ‘seems to be designed as a defence for the shipper’.109 As stated above, the fault-based liability and the proportionate provision under Art.30(3) is of no effect, when the shipper breaches his duties under Art.32. But it could be argued that this may not be the position for contributory breaches and the national courts may continue to apply the existing approach regarding loss or damage on that issue. In that respect, the overriding effect of Art.III(1) of the Hague/Hague-Visby Rules will continue to apply to Art.14. Asariotis has identified a problem associated with the loss or damage which has been caused by two concurrent causes namely the shipper’s breach of his obligations under Art.32(a) and the carrier’s breach under Art.14.110 To be more precise, contrasting with Art.IV(6), Art.32(a), along with the indemnity action, also imposes the obligation to notify the carrier, whose breach will fall into the ambit of Art.30(1). Furthermore, the liabilities that arise under Art.32, explicitly fall outside the scope of Art.30(2) and (3) and also the apportionment mechanisms under Art.17 are applicable solely to claims against the carrier for loss, damage or delay. Therefore, it seems that when a combination of breaches occur both by the carrier under Art.17 and of the shipper’s duty under Art.32(a), the latter will be fully liable preventing him from limiting his liability under Art.30(1).111 This has been

108 The Athanasia (n 27) 284 (Mustill J). 109 See Baatz (n 42). 110 Regina Asariotis, ‘Burden of proof and allocation of liability for loss due to a combination of causes under the new Rotterdam Rules’ JIML (2008) 537-554. 111 See Diamond, (n 71) 476-8.

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characterised as ‘rather astonishing’112 and it is difficult to dissent from that opinion, as this way of interpretation of the Rotterdam Rules, clearly gives an unfair result to the shipper. The effect of this analysis could have an opposite and undesirable outcome to that of the Court of Appeal’s judgement in The Fiona case. According to S. Baughen, it is possible that The Kapitan Sakharov will provide the necessary guidance with which to resolve this problem.113 4.3 The liability of the lawful holder of a bill of lading involving a shipment of dangerous goods 4.3.1 The common law The term ‘shipper’ is not broad enough to include the consignee or transferee of the bill of lading. Instead, these parties are regarded as third parties as they do not have any direct contractual relationship with the carrier, as a result, separate analysis is required on this issue. Under English law, the general rule with regards to privity of contract, as can be seen in Dunlop Pneumatic Tyre Co v. Selfridge Co Ltd114, is that only parties to the contract have rights and liabilities under it. Accordingly, a non-contractual claimant cannot sue upon it or be sued under it. This rule does not discriminate between contracts that intend to confer rights or to impose liability on a subsequent lawful holder of the bill of lading. That is the principal motivation for the elaboration of various exceptions115 to the rule, such as the Carriage of Goods by Sea Act 1992 (COGSA 1992).116 First of all, the statutory effect of the Act is to transfer rights under the bill of lading contract to a third party by establishing that he is the lawful holder117 of the bill of lading.118 Secondly, according to section 3(1) the lawful 112 Asaritosis, ‘Loss due to a combination of causes: burden of proof and commercial risk allocation’ in D.R. Thomas (ed) A New Convention for the Carriage of Goods by Sea – The Rotterdam Rules (Lawtext Publishing 2009) 164. 113 Baughen (n 78). 114 [1915] AC 847, HL. 115 By statute (as this paper is concerned), agency, collateral contracts, trusts and covenants in land law. 116 This Act replaced the old regime Bills of Lading Act 1855 and the principle of Brandt v Liverpool Brazil & River Plate SN Co [1924] 1 KB 575, according to which the third parties impliedly obtain rights to sue the carrier. For comprehensive discussion of the COGSA 1992 See M Bridge (ed), Benjamin’s on Sale of Goods (8th edn, Sweet & Maxwell 2010) ch 18 and G Treitel, Carver on Bills of Lading (2nd edn, Sweet & Maxwell 2005) chs 5, 8. 117 The term ‘holder’ denotes that the third party may be either transferee or endorsee in the light of the constructive possession of the goods. See s 5(2)(a)-(b). 118 See sub-ss 2(1) and 5(1). The Act also applies to sea waybills and to delivery orders.

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holder of the bill of lading may be ‘subject to the same liabilities under that contract as if he had been a party to that contract’. This is true, if he has taken active steps to enforce the provisions specified in the subsections (a), (b) and (c). Nonetheless, the separation of rights from liabilities in the Act is of pivotal significance and the operation of s.3(1), is triggered, only if the rights acquired by the holder are by virtue of s.2(1) of the Act.119 A great concern has arisen as to whether the shipper’s common law undertaking not to ship dangerous goods, and therefore his liability, may be transferred to the holder of the bill of lading. Mustill J in The Athanasia Comninos, despite the fact that he avoided ruling on the particular issue, stated that the consignee, by accepting delivery, ‘assume[d] only those rights and liabilities created by the contract of carriage which concern[ed] the carriage and delivery of the goods, and the payment therefor’120. Although, there is no precedent stipulating that the common law absolute obligation is capable of being transferred to a third party, in the two cases of The Aegean Sea121 and The Berge Sisar122, the courts presumed that the shipper’s obligation is transferable, only if the third party triggers the operation of s.3(1) of the COGSA 1992. This is true, even if a shipper is ignorant of the true nature and characteristics of the cargo. This reasoning clearly contravenes the Brass v. Maitland decision under which the shipper’s liability is strict and therefore incapable of being transferred. Given this uncertainty, the natural question is: does the third party, under s.3(1) of COGSA 1992, undertakes all the liabilities as if he had been an original party under the contract of carriage? A plain reading of s.3(1), suggests that the lawful holder of the bill of lading is subject to all liabilities that arise under the contract in ‘the same’ way as the initial contracting party. However, the phrase ‘the same’ may be interpreted differently. To be more specific, it has been submitted that the liabilities of the receiver of the goods under s.3(1) of COGSA 1992 are those ‘as if he had been a party’ to the contract of affreightment and not as ‘if he had been a shipper’.123 In other words, the liabilities conferred upon the third party are additional to the original shipper’s; the liability of the latter is maintained under s. 3(3). This allegation is further strengthened by the use of the words ‘the same’ next to the word ‘liabilities’, which connotes that the shipper 119 See Sewell v. Burdick [1884] 10 AC. 120 See (n 27) 281. 121 [1998] 2 Lloyd’s Rep 39 QB. 122 Borealis AB v. Stargas Ltd [2001] 2 WLR 1118, HL; [2002] 2 AC 205. 123 David Yates and others (eds), Contracts for the Carriage of Goods (LLP 1993) 1.6.5.1.31, 51.

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and the lawful holder are separate legal entities and not every liability of the former is assigned to the latter. A parallel conclusion can be drawn from the case of The Miramar124. In that case the House of Lords, by taking into account the express words of the charterparty, refused to manipulate the language of its demurrage clause, in order to hold any party other than the charterer liable. Next, with reference to the The Berge Sisar, the first question which the House of Lords was faced with was whether the intermediate buyer in the string of sales had, at the time of acquiring rights, also acquired liabilities under the bill of lading pursuant to s.3(1)(c). If that condition had been satisfied, then the next question was whether the intermediate buyer could be divested from his statutory liabilities when he passed the bill of lading to the sub-buyer, as there is no equivalent section to s.2(5) in the Act, for example s.3(5). In that case, an intermediate holder of the bill of lading requested samples of the dangerous cargo (liquid propane) prior to delivery. Actually, he rejected the delivery of such cargo and sold them to another party. In order to do that, he took possession of the bill of lading and subsequently endorsed it to a sub-buyer. Under the terms of COGSA 1992, the momentary possession of the bill of lading by the intermediate buyer gave him rights of suit under s.2(1), and his rights were subsequently divested through the operation of s.2(5). On that basis, Lord Hobhouse of Woodborough, concluded ex hypothesi that the requesting of ‘routine samples’125 ‘fall[s] a long way short of amounting to any demand’126 as the intermediate holder did not have possession of the bill of lading under which he would have acquired rights pursuant to s.2(1) with which to trigger s.3(1)(c). The House of Lords pointed out that even if liability had attached to the intermediate holder when he obtained the bill of lading, he would have been deprived of it automatically when he passed the bill of lading to the sub-buyer, which would have resulted in the loss of the rights of suit under s.2(5). This reasoning is based on the fact that the draftsmen of COGSA 1992 embedded the principle of mutuality127, a premise which is justified by the case of Smurthwaite v. Wilkins128 on which the Court of Appeal based its

124 [1984] AC 676 (HL). 125 (n 127) 5, 38. 126 ibid 38. According to Lord Hobhouse there is no actual ‘demand’ when there is no intention of compliance; a demand with no legal basis is a nullity. A formal demand was required to operate s 3(1)(c). However, it is noteworthy to say that the approach followed by the House of Lords, possibly confines the divestment under the two other provisions of s 3(1), namely s 3(1)(a)(‘demand for delivery’) and s 3(1)(b) (‘makes a claim’). 127 See The Berge Sisar (n 124) 233 (Lord Hobhouse). 128 (1862) 11 CB (NS) 842, 848 (Erle CJ).

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judgement. The magnitude of that principle is to divest an intermediate lawful holder of his liability when s.2(5) comes into effect and therefore, to divest him of rights of suit, even if a subsequent party does not necessarily bring upon himself liability under s.3(1). Hence, in the circumstances of a rejection of a cargo at the port of discharge, neither the original buyer nor the sub-buyer is liable. Lastly, it should be noted that the commencement of a cargo claim always embraces the risk that the claimant may sustain an unanticipated liability associated with the damage occurred by the shipowner due to the dangerous characteristics of the goods. More recently, in The Ythan129, Aikens J’s judgement offers useful guidance for the holders of spent bills130, as to what will trigger their potential liability under s.3(1). On the facts of the case, the court, by taking into consideration The Berge Sisar, held that i) the transaction in question cannot render the buyer’s insurance agent as a ‘lawful holder’ of the bill of lading either under s.5(2)(b) or s.2(2)(a) of COGSA 1992, because the main purpose of the transfer of the bill of lading was the commencement of a claim under the policy of the contract and ii) even if, the broker falls into the ambit of the ‘lawful holder’, s.3(1) cannot be triggered as its criteria, particularly if ‘the claim’ is not satisfied.131 4.3.2 The position under the Hague/Hague-Visby Rules and the Rotterdam Rules Under Art.IV(6) it is less clear whether the consignee or the endorsee is responsible to the carrier. It has been asserted that it affects only the shipper, who is in a better position than other parties to ascertain the nature of the goods shipped.132 This approach has been reflected in the judicial interpretation of the term ‘shipper’, where it appears in other provisions in the Rules. More specifically, in the case of The Filikos133 the Court of Appeal scrutinised the term ‘shipper’ contained in Art.IV(2)(i) and also in Thomas J’s, obiter, in The Aegean Sea in Art.IV(3). The Court held that the duty is imposed exclusively on the original shipper and the word ‘shipper’ must

129 [2005] EWHC 2399 (Comm); [2006] 1 Lloyd’s Rep 457. 130 The rights of the lawful holder of a spent bill can be transferred under s 2(2). 131 For further analysis of that case see Baughen, ‘Sue and be Sued? Dangerous Cargo and the Claimant’s Dilemma’ [2006] 5(4) S.& TLI 14. 132 Indira Carr, International Trade Law (4th edn, Routledge 2010) 265. 133 [1983] 1 Lloyd’s Rep 9 (CA).

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not be extended in order to cover third parties.134 However, this line of reasoning is open to objection and several arguments have been made in favour of the potential transferability of the shippers’ obligations. It has been asserted that ‘the mere use of the word ‘shipper’ does not, without more, mean that liability created by Art.III(5) is personal to the shipper and incapable of being transferred to anybody else in any circumstances’. The limitation under that Article is achieved by its final words and not from the term ‘shipper’.135 Additionally, to enhance more the argument for the transferability of the shipper’s obligation under Art.IV(6), it should be emphasized that in The Giannis NK Lord Lloyd of Berwick and Lord Steyn stated that all the original liabilities of the shipper were transferable to a third party under the Bills of Lading Act 1855, by way of addition rather than of substitution.136 To conclude this debate, it seems that the current position is that the holder is not subject to the shipper’s liabilities regarding dangerous goods.137 Nevertheless, it can be said that, it is open to the courts to decide on this matter in order to limit the shipper’s obligations under Art. IV(6), since they will scrutinise again the issue of the shipper’s obligation and more particularly whether the statutory obligation supersede the common law, when they overlap. Therefore, if the courts decide that Art.IV(6) imposes an obligation solely upon the original shipper and therefore that obligation is non-transferable, the holder of the bill of lading may still become liable, but only if the claim is advanced under common law basis for matters covering ‘legally’ dangerous goods.138 The Rotterdam Rules also contain certain provisions regarding the transfer of rights and liabilities to third parties but only in respect of the negotiable transport documents and their electronic equivalents.139 Hence, non-negotiable transport documents (straight-bills and waybills) are left to be governed by national law. Art.57 of the Rules deals with the rights that can be transferred by the holder.140 In relation to liabilities, Art.58(1) sets out that a holder does not acquire liability under the contract of carriage if he ‘does not exercise any right under the contract of carriage’ . On the 134 Thomas Scrutton also reaches the same conclusion considering art III(5). See Scrutton On Charterparties (Sweet & Maxwell 2011) 434, 453. 135 David Mildon and David Scorey, Liabilities of Transferees of Bills of Lading [1999] IJOSL 94-104; See The Miramar [1984] 2 Lloyd’s Rep 129 (HL). 136 [1998] 1 Lloyd’s Rep 337, 343-4, 349; s 3(3) COGSA 1992. 137 See (n 23) 96. 138 See Baughen (n 80). 139 See ch 11, art 57, 58. 140 Nonetheless, the Rotterdam Rules do not contain any equivalent to s 2(5) COGSA 1992, in order to divest the parties from their rights of suit. Also, there is no provision for the divestment of liability of the holder, when he tenders the bill of lading to another party.

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other hand, Art.58(2) states that the holder of the bill of lading assumes liabilities, if he ‘exercises any right under the contract of carriage’ but he ‘does not then assume the same liabilities as if he had been the original party to the contract’141. Hence, despite the fact that the construction of this Article is influenced by s.3(1) of UK COGSA 1992, it appears that the shipper’s obligations and liabilities under Chapter 7 of the Rotterdam Rules, including Art.32, are unlikely to be transferred onto a third party, unless this is done through an express clause in the contract. But this clause is likely to be regarded as an attempt to increase the obligations of the ‘consignee, controlling party or holder’ or to limit or exclude the shipper’s liability, and therefore, it will be rendered invalid by virtue of Art.79(2). 5. Conclusion This paper has focused on issues surrounding the carriage of dangerous goods. The complication with ‘dangerous goods’ is that there is no integrated definition of such goods, and the level of danger is not always derived from the inherent nature and characteristics of the goods themselves. Hence, the apportionment of risk is the principal method for the national courts to determine the definition of ‘dangerous goods’. This paper has looked specifically at the role of the English courts in broadening the definition to the point that it now covers almost every type of cargo – from nuclear and radioactive substances to groundnuts – and also covers loss or damage leading to financial loss for the carrier, such as delay or seizure of the ship. The contribution of the well-established global regulatory bodies has also been substantial. They have produced cardinal guidelines that provide some degree of universality and coherence, thereby reducing the level of risk that the parties undertake with such shipments. Without these, states may well have adopted broad and incompatible standards which would have resulted in considerable prejudicial effects for the contracting parties, third parties, states, and humanity in general. It was shown that under English law, the Hague/Hague-Visby Rules and the Rotterdam Rules, no shipper is prohibited from shipping dangerous goods. However, this stance is conditional upon the carrier consenting to the shipment and the shipper being obliged to properly notify the carrier regarding the nature and characteristics of the cargo. Given these conditions, and the overall purpose of minimising, if not eliminating, the risks involved in transporting 141 ibid. The Rotterdam at p.530. Where the shipper is the charterer too, according to The Dunelmia [1970] 1 QB 289, it will fall outside the scope of the Rules by virtue of Art. 6.

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such goods, both contractual parties are encumbered with certain duties which are closely interrelated. By reviewing the above legal regimes, it has been observed that the liability of the shipper remains strict. His primary implied undertaking is notification of the carrier, and is absolute. This was originated in the English legal system more than one hundred fifty-five years ago, by the case of Brass v. Maitland. However, this issue generated too much controversy, but was finally resolved with the case of The Giannis NK which brought common law into line with the Hague/Hague-Visby Rules. As regards the Rotterdam Rules, although they are consistent with the established position on notification duty, they also establish explicitly a second duty on the shipper, namely the marking of goods. Nevertheless, there are specific controversial matters and residual uncertainties which remain at issue. The first is whether Art.IV(6) applies to financial loss sustained by the carrier when transporting ‘legally’ dangerous goods. Secondly, some uncertainty has arisen following cases where the carrier has committed negligence and where this has been a contributory cause of the loss or damage. In such cases, English common law operates on the basis that both parties share equal responsibility as to their distinct obligations; e.g. the implied duty to notify and the implied duty of ensuring seaworthiness, are both absolute. However, the Hague/Hague-Visby Rules allow the carrier to be discharged from his breach of seaworthiness if he proves that he exercised due diligence. The question is, therefore, when there is an overlap between the Hague-Hague/Visby Rules and English common law regarding the two different duties imposed on the parties, in an event of carrier’s negligence, under which of these two legal regimes should the claim be judged? A third area where there is lack of clarity concerns the Rotterdam Rules. For example, the issue of whether the words ‘loss or damage’ under Art.30 include delay is not explicit; nor is there clarity with regard to cases where there is a combination of breaches by both the shipper and the carrier. Fourthly, regarding third parties, the question of whether these parties should ever be liable, attracts considerable attention. It can be argued that as these parties have not had any direct connection with the dangerous goods prior to their loading, they should never have liability attached to them. The current position in English law is governed by The Berge Sisar, which established that there are obvious limits to the liabilities of a lawful holder. However, since the House of Lords has presumed that the shipper’s obligation is capable of being transferred under section 3(1) of COGSA, this clearly leaves open the possibility that lawful holders may become liable. Therefore, third parties, such as banks or end buyers, are recommended to use explicit terms to avoid

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any undesirable results. For each of the abovementioned controversial issues, we need to wait for the courts to make their decisions and thereby establish clear precedents. To conclude, despite these controversies and uncertainties it does not appear that the main objectives of English law or the Conventions have been undermined. Therefore it is difficult to escape the conclusion that these legal frameworks, as discussed in this paper, currently provide a satisfactory legal approach regarding the carriage of dangerous goods by sea, based on the allocation of risk between the parties involved in the contract. However, it should always bear in mind that the courts are those who have the last say on these matters.

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Bibliography Legislation and Regulations Bills of Lading Act 1855 Carriage of Goods by Sea Act 1924 Carriage of Goods by Sea Act 1971 Carriage of Goods by Sea Act 1992 HNS 2010 Protocol International Convention for the Unification of Certain Rules of Law relating to Bills of Lading 1928 (Hague Rules) International Convention for the Unification of Certain Rules of Law relating to Bills of Lading 1971 (Hague-Visby Rules) International Convention for Safety of Life at Sea 1974 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996 (HNS) International Maritime Dangerous Goods Code Law Reform (Contributory Negligence) Act 1945 Merchant Shipping Act 1995 Merchant Shipping and Maritime Security Act 1997 Merchant Shipping (Dangerous Goods and Marine Pollutants) Regulations 1997 Merchant Shipping (Dangerous Goods and Marine Pollutants) (Amendment) Regulations 2006 UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules) US Carriage of Goods by Sea Act 1936 List of cases English cases Aegean Sea, The [1998] 2 Lloyd’s Rep 39 QB Acatos v Burns (1878) 3 Ex D 282 (CA) Aconcagua, The [2009] EWHC 1880 (Comm) QB; [2011] 1 Lloyd’s Rep 683 (CA) Agios Nicolas, The [1968] 2 Lloyd’s Rep 57 QB Alston v Herrin (1856) 11 Ex. 822 CE Amphion, The [1991] 2 Lloyd’s Rep 101 QB Atlantic Duchess, The [1957] 2 Lloyd’s Rep 55 QB

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Berge Sund, The [1993] 2 Lloyd’s Rep 453 (CA) Borealis AB v Stargas Ltd (The Berge Sisar) [2001] 2 WLR 1118 (HL); [2002] 2 AC 205 (CA) Brandt v Liverpool Brazil & River Plate SN Co [1924] 1 KB 575 Brass v Maitland (1856) 6 E & B 470 QB Burges v Wickham (1863) 3 B & S 669 Chandris v Isbrandtsen-Moller Co. Inc [1951] 1 K.B. 240 Coggs v Bernard (1703) 92 ER 107 Darya Radhe, The [2009] EWHC 845 (Comm); [2009] 2 Lloyd’s Rep 175 QB Deutsche Ost-Afrika Linie v Legent Maritime Co [1998] 2 Lloyd’s Rep 71 QB Dunelmia, The [1970] 1 QB 289 Dunlop Pneumatic Tyre Co v Selfridge Co Ltd [1915] AC 847 (HL) Domald, The [1920] P 56 European Enterprise, The [1989] 2 Lloyd’s Rep 185 Effort Shipping v Linden Management (The Giannis NK) [1994] 2 Lloyd’s Rep 171 QB; [1994] 2 Lloyd’s Rep. 257 (CA); [1996] 1 Lloyd’s Rep 577 (CA); [1998] 1 Lloyd’s Rep 337 (HL); [1998] 2 WLR 206 (HL) Farrant v Barnes (1862) 11 CB (NS) 553 Filikos, The [1983] 1 Lloyd’s Rep 9 (CA) Forward v Pittard (1785) 1 TR 27 Hutchison v Guion (1858) 5 C.B. (N.S.) 149 CCP Mediterranean Freight Services v BP Oil International (The Fiona) [1993] 1 Lloyd’s Rep 257 QB; [1994] 2 Lloyd’s Rep 506 (CA) Ministry of Transport v Lamport and Holt [1952] 12 Lloyd’s Rep 371 Miramar, The [1984] AC 676 (HL) Mitchell, Cotts & Co. v Steel Bros & Co. Ltd [1916] 2 KB 610 Northern Shipping Company v Deutsche Seereedei GmBH (formerly Deutsche Seereederei Rostock GmBH) (The Kapitan Sakharov) [2000] 2 Lloyd’s Rep 255 (CA) Sewell v Burdick [1884] 10 AC Smurthwaite v Wilkins (1862) 11 CB (NS) 842 The Athanasia Comninos & Gerorges Chr. Lemos [1990] 1 Lloyd’s Rep 277 QB Transoceania Societa Italiana di Navigazione v H.S. Shipton & Sons [1923] 1 KB 31 Williams v East India Co (1802) 3 East 192 Ythan, The [2005] EWHC 2399 (Comm)

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United States cases Excel Shipping Corporation v SeaTrain International SA 584 F Supp 734 (1984) General S.A General Trades Enterprises and Agencies v Consoricio Pesquerio Del Peru, 1974 AMC 2342 Senator Linie GmbH & Co v Sunway Lines Inc 291 F 3d 145; [2002] AMC 1217 (2nd Circ 2002) Serraino v United States Lines 1965 AMC 1038 Sucrest Corp. v M.V. Jennifer 1978 AMC 2520; 455 F Supp 371 (Maine, ND) Canadian Cases Heath Steel Lines Ltd v The Erwin Schroder [1969] 1 Lloyd’s Rep 370 Stylianos Restis, The [1974] AMC 2342 Secondary Sources Aikens and others (eds), Bills of Lading (1st edn, Routledge 2006) Asariotis R, ‘Burden of proof and allocation of liability for loss due to a combination of causes under the new Rotterdam Rules’ (2008) JIML 537 Baatz Y and others (eds), Rotterdam Rules: A Practical Annotation (5th edn, Routledge 2009) Baughen S and Campbell N, ‘Apportionment of Risk and the Carriage of Dangerous Cargo’ [2001] 1 Int M L 3 —— ‘Obligations of the shipper to the carrier’ (2008) 14 JIML 555 —— ‘Sue and be Sued? Dangerous Cargo and the Claimant’s Dilemma’ [2006] 5(4) S & TLI 14 —— Shipping law (5th edn, Routledge 2012) Berlingieri F, ‘A comparative analysis of the Hague-Visby Rules, the Hamburg Rules, and the Rotterdam Rules’ (General Assembly of the AMD, Marrakesh, 5-6 November 2009) —— ‘Revisiting the Rotterdam Rules’ [2010] LMCLQ 583 Bernard and others (eds), Scrutton on Charterparties and Bills of Lading (22nd edn, Sweet & Maxwell 2011) Boyd SC and others (eds), Scrutton on Charterparties (20th edn, Sweet & Maxwell 1996) Bridge M and Bennett HN, Benjamin’s on Sale of Goods (8th edn, Sweet & Maxwell 2010)

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Bulow LC, ‘Dangerous cargoes: the responsibilities and liabilities of the various parties’ [1989] LMCLQ 342 Carr I, International Trade Law (4th edn, Routledge 2010) Cedre Centre of Documentation, Research and Experimentation on Accidental Water Pollution <http://www.cedre.fr/en/spill/chronological-classification.php> accessed 26 October 2013 Charles A and De la Rue Colin, ‘Liability of Charterers and Cargo Owners for Pollution from Ships’ [2001] 26 Tul Mar LJ 1 Charles A, A Treatise of the Law Relative to Merchant Ships and Seamen (5th edn, Shaw & Sons 1901) Coghlin and others (eds), Time Charters (6th edn, Routledge 2008) —— (3rd edn, Routledge 2007). Colinvaux R, Carver’s Carriage by Sea, vol 2 (13th edn, Stevens & Sons 1982) de Bievre AFM, ‘Liability and Compensation for Damage in Connection With the Carriage of Hazardous and Noxious Substances by Sea’ (1986) 17 JMLC 61 Deniz Güner-Özbek M, The Carriage Of Dangerous Goods By Sea (Springer 2008) Diamond A, ‘The Rotterdam Rules’ [2009] LMCLQ 445 Girvin S, ‘Shippers’ liability for the Carriage of Dangerous Cargoes by Sea’ [1996] LMCLQ 487 —— ‘Carriage of goods by sea’ (2nd edn, OUP 2011) International Maritime Organization, ‘IMDG Code including amendment 36-12 2012 edition’ (IMO Publishing 2012) Mildon D and Scorey D, Liabilities of Transferees of Bills of Lading [1999] IJOSL Panesar S, ‘The Shipment of Dangerous Goods and Strict Liability’ [1998] ICCLR 136 Paul T, Contract for the Carriage of Goods by Sea (BSP Professional Books 1988) Report of the Working Group III (Transport Law) A/CN.9/WG.III/WP 56 and A/ CN.9/WG.III/WP.101 <http://www.uncitral.org/uncitral/commission/working_ groups/3Transport.html> accessed 16th July 2013. Rose FD, ‘Cargo Risk: Dangerous Goods’ (1996) 55 CLJ 601 —— ‘Liability for Dangerous Goods’ [1998] LMCLQ 480 Steel J, ‘Dangerous Beetles in the House of Lords – Shippers Absolutely Liable’ [1998] 2 IJOSL 119 Tetley W, Marine Cargo Claims (3rd edn, Blais 1998) Treitel G and others (eds), Carver on Bills of Lading (Sweet & Maxwell 2005)

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Wilford M and others (eds), Time Charters (4th edn, LLP 2003) Wilson JF, Carriage of Goods by Sea (4th edn, Pearson 2001) —— Carriage of Goods by Sea (7th edn, Pearson 2010) Yates D (ed), Contracts for the Carriage of Goods (Lloyd’s London Press 1993)

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Thwarting International Law: The Wall Meera Chander

The conflict between Israel and Palestine reached new heights in July 2014 when Israel launched ‘Operation Protective Edge,’ which concluded with an open-ended ceasefire on August 26, 2014. The decision taken by the International Criminal Court (ICC) in January 2015 to allow Palestine membership is a step that many view as providing the catalyst to open up investigations that could hold Israel accountable to international law and for human rights violations. The term ‘self-defence’ is frequently employed to escape criticism and/or legitimize actions that are known to be inconsistent with international and human rights law, and such is the case in attempts to defend the implementation of the wall constructed between Israel and Occupied Palestinian Territory. Along with human rights violations, the steps taken by the government of Israel to erect the wall in occupied Palestinian land is found to be contrary to international law. The following case study will look at international law and human rights violations that have surfaced due to the International Court of Justice’s (ICJ) 2004 advisory opinion regarding the legal consequences of the construction of a wall in the occupied Palestinian territory and the future of international law. The wall was to be constructed between Israel and the occupied territories of Palestine. Israel began construction in 2002 and, although it is still not complete, the legality of it is contested among many intellectuals, governments, and activist groups to this day. A resolution was put forward to ask the ICJ for an advisory opinion on the following question: “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth

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Geneva Convention of 1949, and relevant Security Council and General Assembly Resolutions?”1 In 2004, the ICJ determined that the construction of the wall is contrary to international law. Moreover, it determined that Israel would be required to cease without delay the works of construction of the wall in the Occupied Palestinian Territory. Subsequently it would be required to dismantle without delay the structure therein situated, and that all legislative and regulatory acts were to be repealed and/or rendered ineffective. Israel would also be required to make reparations for all damages caused by the construction of the wall. Finally the ICJ decision also stated that all those states who are parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in the Convention. Keeping the present Advisory Opinion in mind the United Nations, and especially the General Assembly and the Security Council would be responsible for considering any further action that would be required in order to bring an end to the illegal situation resulting from the construction of the wall.2 The underlying issue is evident in the terms used to define the wall. While some define it as an ‘apartheid wall’ that is built to isolate Palestinian communities and keep them segregated in impoverished areas, others label the barrier a ‘security fence,’ a non-violent solution to keep terrorists away.3 Some argue that it was not in the jurisdiction of the ICJ to make a decision on this matter. The Court looked at Article 65, paragraph 1, of its Statute, in which it states that the Court “may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request”, and that the General Assembly in Article 96, paragraph 1, of the Charter states that: “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question”.4 The request was therefore within the mandate of the General Assembly and the ICJ was valid in addressing this issue. 1 UNGA Res ES-10/14 (12 December 2003) UN Doc. A/RES/ES-10/14. 2 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) 2004 ICJ Summary accessed 9 July 2004. 3 Seth Benjamin Orkand, ‘Coming Apart at the Seamline-The Oslo Accords and Israel’s Security Barrier: A Missed Opportunity at the International Court of Justice and the Israeli Supreme Court’ (2007) 10 Gonzaga Journal of International Law 390. 4 ICJ (n 2) 2.

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In recognition of the conflict at hand, it is essential to have an understanding of the term ‘self-defence’. The creation of the wall is reported as a self-defence mechanism by the Israeli government. Along the border of the West Bank inside occupied territory is the security barrier. This deviates greatly into Palestinian territory from the ‘Green Line’ border that was established in 1949 at the end of the 1948 Arab-Israeli War. Israel asserts that this deviation is motivated by its national security need to defend Jewish settlers already illegally located on Israeli-recognized Palestinian land from Hamas terrorist attacks. This deviation and encroachment of settlements from the Green Line leads opponents to argue that these ‘self-defence’ or ‘security concerns’ are simply veiled attempts at a ‘land-grab’. Much of the barrier is constructed in Palestinian-owned land and the official reasoning of “self-defence” seems a guise of inflated risk.5 According to the case given to the International Court of Justice, Israel stated that: “the construction of the Barrier is consistent with Article 51 of the Charter of the United Nations, its inherent right to self-defence and Security Council resolutions 1368 (2001) and 1373 (2001)”. The Court noted that Article 51 does in fact talk about a state having the inherent right to self-defence in the case of armed attack by one State against another State. The issue here is that Israel does not claim that the attacks against it are ‘imputable to a foreign state’. Moreover, The Court noted that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat that it regards as justifying the construction of the wall originates within, and not outside, that territory.6 Therefore, Israel’s use of their military for self-defence reasons is inconsistent with Article 51 of the Charter. Along with displacing and/or removing approximately 200,000 Palestinians from their land, families, and day-to-day activities the Palestinian land continues to be divided in narrower portions that are being heavily occupied by Israeli security forces. In tandem, there are exclusive highways that are being built in order to connect “the new Greater Israel in the west with the occupied Jordan River valley in the east, where 7,000 Jews are living in twenty-one heavily protected settlements among about 50,000 Palestinians who are still permitted to stay there”7. By virtue of the interpretations made by the International Court of Justice of the Palestinian people’s right to self-determination, the court recalled that both the General Assembly and the Security Council referred to the customary rule of “the 5 6 7

Orkand (n 3) 397. ICJ (n 2) 12. Jimmy Carter, Palestine Peace Not Apartheid (Simon & Schuster 2006) 195.

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inadmissibility of the acquisition of territory by war”. In relation, the Court observed that the existence of a ‘Palestinian people’ was no longer an issue, and had been recognized by Israel, with the people’s ‘legitimate rights’. The Court considered those rights to include the right to self-determination, as the General Assembly had recognized on many occasions.8 This is another important segment of the decision made by the Court, since it illustrates that Israel does recognize the Palestinians as a people, despite making up 20% of the population. Another violation that came about due to the decision making by the International Court of Justice was information presented to the Court that showed that, since 1977, Israel had conducted a policy and developed practices involving the establishment of settlements in the Occupied Palestinian Territory. This went against the terms of Article 49, paragraph 6, of the Fourth Geneva Convention which provided that: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”. The Security Council had decided that this approach and policy had ‘no legal validity’ and was a ‘flagrant violation’ of the Convention. Thus, the Court had concluded that the Israeli settlements had been established in breach of international law.9 These settlements continue to flaunt these rulings, whilst construction and migration continues daily. The construction of the wall and its associated limitations impede the liberty of movement of those residing in the Occupied Palestinian Territory. This liberty of movement is to be guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights. Subsequently there is a direct violation to the persons concerned of the “right to work, to health, to education and the an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights in the United Nations Convention on the Rights of the Child”. It also contravenes Article 49, paragraph 6, of the Fourth Geneva Convention and the pertinent Security Council resolutions.10 From the very beginning, the international community has been sceptical about the implementation of the wall. When Prime Minister Ariel Sharon announced an initial plan to create this separation to prevent ‘terrorist attacks’, Palestinian Authority Chairman Yasser Arafat said the proposal was a ‘violation of international law’ that was opposing to the Oslo Accords. 11 The ‘Oslo Accords’ consist of six main ac8 ICJ (n 2) 10. 9 ibid. 10 ICJ (n 2) 11. 11 Orkand (n 3) 401.

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cords: the Declaration of Principles in 1993 (Oslo I); the Gaza-Jericho Agreement in 1994; Oslo II in 1997; the Hebron Protocol in 1997; the Wye River Memorandum in 1998; and the Sharm el-Sheik Memorandum in 1999. There are several themes shared amongst these accords that are applicable to the wall. First, the security of Israelis and Israeli settlements located in the West Bank has been of much importance to Israel. Secondly, both parties have an agreement to prevent terrorism and acts of violence directed towards each other. Thirdly, it was agreed that neither parties would take steps that would alter the status of the West Bank nor Gaza Strip until a final decision was made on the permanent negotiations. Fourthly, that the parties would exercise and adhere to the internationally accepted principles of human rights and the rule of law. Finally, that disputes because of the application or interpretation of agreements would be dealt with through conciliation that can be mutually agreed upon, even using binding arbitration.12 The Oslo Accords were never included in the decisions made by the International Court of Justice or the Israeli Supreme Court. This begs the question of whether the exclusion of the Accords from the decision merely emphasized the fact that they were not legally binding and were ineffective grounds for judicial review. This view would take into account the intention of the parties when they signed the Oslo Accords as well as the fact that the Palestinian Liberation Organization (PLO) is not a government of a State with traditional treaty-making powers. However, despite the PLO not representing a State, traditional international treaty law does accommodate for non-State entities entering into binding treaties.13 In addition, courts may have viewed the Oslo Accords as being ineffective because the terms were no longer politically relevant or had been terminated due to material breaches by both parties involved.14 Pacta sunt servanda means that every international agreement in force is legally binding on the parties and must be followed in good faith. In taking into account all agreements that were meant to be adhered to by both parties in relation to the Oslo Accords and considered under the ICJ, “it is clear that neither party submitted to its jurisdiction by the terms of the Oslo Accords”15. Keeping in line with the purpose of

12 13 14 15

ibid 407. Orkand (n 3) 417. ibid. Orkand (n 3) 430.

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the Oslo Accords, the ICJ should have given an Advisory opinion, much like the one that was given regarding the Western Sahara, which said: “In certain circumstances … the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character. An instance of this would be when the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State in not obliged to allow its disputes to be submitted to judicial settlement without its consent. If such a situation would arise, the powers of the Court … would afford sufficient legal means to ensure respect for the fundamental principle of consent to jurisdiction.”16 In October of 2003, the nations of Guinea, Malaysia, Pakistan, and Syria submitted a draft resolution to the UN Security Council calling on Israel to end the occupation of the West Bank and the Gaza Strip. Within this resolution they also declared that a wall departing from the armistice line of 1949 is “illegal under relevant provisions of international law”. This resolution failed despite the fact that ten out of the fifteen members voted in favour; it was the United States who vetoed the vote because they viewed the proposal as ‘unbalanced’ because it “did not condemn terrorism in explicit terms”.17 The General Assembly held its tenth Emergency Session on Illegal Israeli Activities in Occupied East Jerusalem and the Rest of the Occupied Palestinian territory; it was found that majority of the speakers condemned the construction of the barrier, and many questioned why it even deviated from the Green Line to begin with. This emergency session adopted a resolution which demanded Israel stop and reverse construction of the West Bank security barrier, declaring it a “contradiction to relevant provisions of international law”.18 This decision is repeated through findings of political figures and of the conclusion of ICJ adjudication. On November 29, 2012 the United Nations General Assembly (UNGA) officially recognized Palestine as a de facto sovereign state by granting it ‘non-member observer’ status.19 Much speculation came about from this decision and its possible 16 Western Sahara (Advisory Opinion) 1975 ICJ 25 accessed 16 October 2004. 17 UNSC 58th Session (14 October 2003),4842d mtg at 2, N Doc. S/PV. 4842. 18 UNGA Res. ES-10/13 (27 October 2003) UN Doc A/RES/ES-10/13. 19 UN Doc A/RES/67/19 (29 November 2012).

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implications on Palestine with relation to the International Criminal Court (ICC). Recognition by the ICC as a state could bring “on the new possibility of ICC investigations of Israeli military activities against terrorists in Gaza, and even more significantly, the entire existence of Jewish communities in the West Bank, which many regard as a clear violation of international humanitarian law”.20 On January 16, 2015 the ICC made a monumental decision to effectively recognize Palestinian statehood. In a statement from the Office of the Prosecutor, “The Office considers that, since Palestine was granted observer State status in the UN by the UNGA, it must be considered a ‘State’ for the purposes of accession to the Rome Statute”.21 This decision has been subject to much praise and criticism from various members of the community around the world. This recognition can trigger further ICC investigations into Israeli military operations, which can expose the illegalities vested in the construction of the wall. In conclusion, several human rights violations and international law contradictions have resulted from the construction of the wall in Occupied Palestinian Territory both in its early conception and today. Treaties and resolutions have been broken and overlooked by its formation. The civilian casualty continues to rise in Israel and Palestine in midst of all this chaos. The International Criminal Court’s inclusion of Palestine is just one of the many steps required toward accountability. It is evident that we are facing a series of problem with the present system in international law. Although the United Nations does exist and does work to promote equality among nation states, countries often view these resolutions as mere suggestions. This is largely because of the formation of the Security Council. The United States sits on the Security Council, and when given the chance can veto a decision brought forth by the United Nations. In addition, the Security Council, as a body, has the jurisdiction to take a conflict out of the hands of the General Assembly. It is crucial that the international law framework has distinct methods of enforceability and accountability to ensure that member states have clarity on what constitutes a breach of international law. The strength of deterrence in much of criminal law is that, although arguable in some circumstances, it is applied to all citizens equally. When we, as individuals, breach our social contract of law, we face the consequences. The nature of our current international law system with state sovereignty as paramount allows each player to remove themselves from 20 Eugene Kontorovich, ‘Israel/Palestine – The ICC’s Uncharted Territory’ (2013) 11 JICJ 980. 21 ICC Press Release, ‘The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine’ ICC-OTP-20150116-PR1083 (2015) accessed 16 October 2014.

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the consequences of their actions, rendering international law currently unenforceable to its fullest extent. International law requires within it a system of consequences. Although this is only one solution, it could be one step towards creating an understanding between member states in conflict like Israel and Palestine to work towards living in a civil and peaceful environment.

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Bibliography Secondary sources Book Carter J, Palestine Peace Not Apartheid (Simon & Schuster 2006) Journal articles Kontorovich E, ‘Israel/Palestine – The ICC’s Uncharted Territory’ (2013) 11 JICJ 980 Orkand SB, ‘Coming Apart at the Seamline-The Oslo Accords and Israel’s Security Barrier: A Missed Opportunity at the International Court of Justice and the Israeli Supreme Court’ (2007) 10 Gonzaga Journal of International Law Press releases ICC Press Release ‘The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine’ (2015) ICCOTP-20150116-PR1083 UN Documents Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) 2004 I.C.J. Summary accessed 9 July 2004 UN Doc. A/RES/67/19 (29 November 2012) UNGA Res. ES-10/13 (27 October 2003) UN Doc A/RES/ES-10/13 UNGA Res ES-10/14 (12 December 2003) UN Doc A/RES/ES-10/14 UNSC 58th Session (14 October 2003), 4842d mtg. at 2, UN Doc S/PV. 4842 Western Sahara (Advisory Opinion) 1975 IC.J 25 accessed 16 October 2004

Should the Study of Men Rather than Women Be the Focus of Feminist Legal Scholars’ Work in the 21st Century? Lara Conlan

Feminist research has provided a wealth of information regarding the impact of hetero-patriarchy by focusing on its negative impact on women.1 Notably, throughout the twentieth century and the beginning of the twenty-first century, feminists have articulated theories of inequality, exposed the silences and absences of women in law and society, and bared the hidden reality of violence for women’s lives.2 The triumphs of these studies in exposing subordination and gender relations have been profound. However, in necessarily attempting to rectify the invisibility and marginalisation of women’s experiences, little feminist research has considered the male experience.3 At first glance the reason for this seems strikingly obvious: feminist studies were originally designed to redress prior overemphasis on men and explore the subordination of women in society.4 Yet, recent studies reveal that the study of men could not only aid the feminist project which underlies women’s studies, but could assist feminist scholarship in reaching its fullest, most radical potential.5 It appears men’s studies, or masculinities scholarship, can contribute to feminist analysis in a number of ways.6 First, men’s scholarship can displace the assumption that men are the norm, rendering gender visible. Second, it reinforces anti-essentialism in feminist theory. By developing a clear understanding of how male privilege and dominance are constructed, one is ultimately led toward a better understanding of intersectional and multiple forms

1 Elizabeth Stanko and Kathy Hobdell, ‘Assault on Men: Masculinity and Male Victimization’ (1993) 33(3) British Journal of Criminology 400. 2 Nancy Dowd, ‘Masculinities and Feminist Legal Theory: An Antiessentialist Project’ (2009) 13 Wisconsin Women’s Law Journal. 3 Julie Owen, ‘Women-talk and Men-talk: Deﬁning and Resisting Victim Status’ in Rebecca Dobash, Russell Dobash and Lesley Noaks (eds) Gender and Crime (University of Wales Press 1995). 4 Harry Brod, ‘The New Men’s Studies: From Feminist Theory to Gender Scholarship’ (1987) 2(1) Philosophy and Women Symposium. 5 ibid 180. 6 Nancy Dowd, ‘Asking the Man Question: Masculinities Analysis and Feminist Theory’ (2010) Harvard Journal of Law and Gender 33.

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of discrimination against both women and men.7 Thus, harms suffered by boys and men that have been largely ignored, both socially and legally, become visible.8 Third, men’s studies transform what have historically been conceived as “women’s business” into men’s issues.9 Identifying harmful masculinities may lead to a restructuring of traditional forms of masculinity in a way that fits easily with the pro-feminist and pro-equality agenda.10 Although the benefits of studying men in the twenty-first century are obvious, the task is one that has to be done right: a commitment to men studies will only be beneficial to the feminist cause if it does not feed into old stereotypes.11 Ultimately, feminist legal scholars should not shift their focus from women, but engage in the study of men to aid their success in painting a fuller picture when analysing gender. 1. ASKING THE “MAN QUESTION:” A NECESSITY In the search for a more robust feminist analysis, it is time for feminist legal scholars to shift their focus from feminist theory to gender scholarship - they must attempt to ask, and answer, “the man question”.12 In doing so, feminists should not shift their focus away from women: as the relative position of women in general and men in general may be different, the nature of the issues and the analysis is not parallel, and gender specificity may be necessary to achieve gender equality.13 Instead, men’s studies or masculinities scholarship should be used to extend and complete research committed to gender-analysis and equality. This essay explores the benefits feminist legal scholars can gain from the study of men and illustrates how “asking the other question” – in this case, “the man question” – is critical to justice.14

7 Dowd (n 6) 416. 8 ibid. 9 Yakin Erturk, ‘Considering the Role of Men in Gender Agenda Setting: Conceptual Policy Issues’ (2004) Feminist Review 78. 10 Raewyn Connell, ‘The big picture: Masculinities in recent world history’ (1993) 22(5) Theory and Society. 11 Dowd (n 7) 424. 12 Dowd (n 7). See also Dowd (n 2), Brod (n 4). 13 Dowd (n 7) 419. 14 Mari Matsuda, ‘Beside My Sister, Facing the Enemy: Legal Theory Out of Coalition’ (1993) Stanford Law Review 43.

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2. TOWARDS A MORE ROBUST FEMINIST ANALYSIS First, masculinities studies can successfully displace the assumption that men are the norm. By taking ‘men into account’, men are no longer treated as the normal subjects of research.15 Morgan uses Weber’s Protestant Ethic as a key example, illustrating that what was once viewed as a study of mankind is better explained as a study of masculinities. He explores the main character traits of the ideal-typical puritan – self-control, discipline, rationality, methodicalness16, – all traditionally masculine traits. The study illustrates that, historically, much of what has passed for descriptive accounts of human nature could be more adequately understood as prescriptive accounts of historically specific paradigms of masculinity.17 The re-examination of studies in the light of notions of gender and masculinity should prove to be an illuminating task that reveals differing gender practices of men in different social orders.18 It reinforces the findings of feminist scholars that masculinity is a social construction, not a biological given, and further exposes how laws are gendered male and how masculinities differ across cultures and time periods.19 Second, - and of great importance – the study of men reinforces anti-essentialism.20 It modifies feminist theories that have previously conceived all men as a homogenous or undifferentiated group.21 Not only does it recognise that not all men are empowered by law22, it identifies the way in which the dominant gender system subordinates and differentiates among men.23 As hierarchies of masculinities form, male power is exerted over other men: men who adhere to principles of hegemonic masculinity stand at the apex24 – they idealise traits such as power, strength and invulnerability– while men who associate with more feminine attributes – emotionally expressive, nurturing and caring25 – are ostracised, and placed at the bottom of this hi15 David Morgan, ‘Men, masculinity, and the process of sociological enquiry’ in Helen Roberts (ed), Doing Feminist Research (Routledge & Kegan Paul 1981). 16 ibid 93. 17 Brod (n 4) 192. 18 Morgan (n 15) 95, Connell (n 10) 597. 19 Dowd (n 7) 418-9. 20 Dowd (n 7) 423. 21 Richard Collier, ‘Masculinities, Law and Personal Life: Towards a New Framework for Understanding Men, Law and Gender’ (2010) 33(2) Harvard Journal of Law and Gender. 22 Carol Smart, Feminism and the Power of Law (Routledge 1989). 23 Dowd (n2). 24 Raewyn Connell and James Messerschmidt, ‘Hegemonic Masculinity: Rethinking the Concept’ (2005) 19(6) Gender & Society 25 Peter Middleton, The Inward Gaze: Masculinity and Subjectivity in Modern Culture (Routledge 1992).

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erarchical system. Such hierarchies reinforce the subordination of women, and subordinate men that do not adhere to the masculine norm: masculinity therefore appears to be as much about relation to other men as it is about relation to women.26 Furthermore, men’s studies reveal how gender hierarchies are inextricably linked to hierarchies of race, class and sexuality. Male-on-male violence, for example, can not be explained solely on the basis of gender hierarchies: one must recognise that violence is a tool used to mark out groups of men as vulnerable through the formation of hierarchies of race, class and sexual orientation as well.27 As a brutal but exceptionally useful example, Harris explains how these factors interplay through the sodomisation of Abner Louima, a Haitian immigrant, by white police officers.28 The attack can be viewed as a result of both masculine and racial hierarchies: the policemen were not only asserting their status as the dominant male, but also asserting the supremacy of their own ‘racialised masculinities’ of whiteness.29 Consequently, men’s studies identifies how intersections of manhood particularly with race, class and sexual orientation are critical to the interplay of privilege and disadvantage, and to hierarchies amongst both men and women.30 It pushes feminists to assess the interconnection of all forms of subordination which in turn forces feminist scholars to look for both the obvious and non-obvious relationships of domination, revealing that no form of subordination ever stands alone.31 It also has the ability to reveal where male gender privilege is entirely trumped: an analysis of the juvenile justice system (or what Dowd calls the “boys justice system”) leads to the recognition of the disproportion of black boys and young men in the system.32 Recognising more completely these dynamics and the interplay of different hierarchies leads to feminist knowledge and self-critique which is critical to fomenting real change.33 By exposing the multiplicity and hierarchy of masculinities, masculinities work delivers the powerful insight that gender does not confer privilege on all men.34 Indeed the valiant soldier or heterosexual male may benefit from hegemonic masculinity, but

26 Dowd (n 7) 419. 27 Angela Harris, ‘Gender Violence, Race, and Criminal Justice’ (2000) 52 Stanford Law Review 779 28 Dowd (n 7) 415. 29 Anthony Alfieri, ‘Prosecuting Race’ (1999) 48(6) Duke Law Journal. 30 Dowd (n 7) 418. 31 Matsuda (n 14) 1189-90. 32 Dowd (n 7) 424. 33 ibid 420. 34 ibid 418.

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what about the conscientious objector or the homosexual man35? One only has to look at law historically – the imprisonment and shaming of men not willing to fight in war or the criminalisation of homosexual acts until 1967 – to conclude that men who deviate from the masculine norm are likely to be just as vulnerable to harm as women. These harms are inflicted through social constructions of masculinity, and reinforced by law. The social construction of hegemonic masculinity undoubtedly harms men. Not only is the ideal of manhood unachievable, men find themselves in a constant battle to prove their masculinity, and purposely try to avoid any acts or expressions that would make them appear effeminate.36 For example, expressions of emotion are a ‘macho’ no-go, encouraging men to cope with intense and overwhelming feelings alone.37 Consequently, men have a high-level of stress-related diseases and deaths, high levels of alcohol and drug abuse38, and even higher suicide rates: 4,552 male suicides were recorded compared to 1493 female suicides in 2011.39 Seeking help, it appears, is not synonymous with masculine from a hetero-patriarchal perspective.40 Additionally, failure to ‘be a man’ in the eyes of society can result in harm to both men and women. Men who feel they have failed to conform to the masculine ideal in traditional ways – being the family breadwinner, for instance – may find themselves empowered by crime as a means to command presence and status in the world.41 Collier offers an example of this failure by examining the Dunblane murders by spree-killer Thomas Hamilton.42 He offers a plausible explanation of the tragedy that unfolded in 1996: Hamilton’s struggle to achieve ‘idealised heterosexual masculinity’ pushed upon males in Western Society left him as an outcast or ‘failure’ as a man, which eventually resulted in the deaths of 16 children and a teacher in his final attempt to achieve manhood.43 Moreover, the male tendency for crime also unveils another harm: that 35 Lois Bibbings, ‘Boys Will be Boys’ in Donald Nicolson and Lois Bibbings (eds), Feminist Perspectives on Criminal Law (Cavendish Press 2000). Lois Bibbings, ‘Images of Manliness: The Portrayal of Soldiers and Conscientious Objectors in the Great War’ (2003) 12(3) Social and Legal Studies. 36 Stanko and Hobdell (n 1). 37 ibid 413. 38 Kendall Segel-Evans, ‘Rape Prevention and Masculinity’ in Franklin Abbott (ed), New Men: Changing Minds, Hearts and Lives, How todays men are changing the traditional roles of masculinity (The Crossing Press/Freedom 1987). 39 Office for National Statistics, ‘Suicides in the United Kingdom, 2011’ [pdf] Office for National Statistics <http://www.ons.gov.uk/ons/dcp171778_295718.pdf> accessed 21 January 2014. 40 Segel-Evans (n 37). 41 Coller (n 21) 191. 42 ibid. 43 ibid.

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men, just like women, can be the victims of gender violence. Research has shown that most victims of violent crime are male44, and reports of men on men violence are less likely to be taken seriously by police and law enforcement agencies.45 Male-on-male violence is normalised, and even tolerated to an extent – justified as ‘horseplay’ or excused by assumptions that ‘boys will be boys’46 – leaving the victims of male violence exposed to harm without the possibility of redress. Accordingly, to acknowledge violence against men is not to diminish or deny the persistent and pervasive violence against women.47 Rather, it is to understand that gender is used in various ways to justify harm and identify victims.48 Exposing such harm reveals the gendered power play of masculinised dominance and feminised subordination in relation to male on male violence.49 Assumptions of ‘manly behaviour’ and gender stereotypes have also been carried through into various aspects of criminal law. The law of rape in the UK can in many ways be seen to be repeating and reinforcing a culturally accepted tradition of heterosexual relations.50 Despite the fact that men are clearly victims of male rape (in England and Wales alone, reported male rape comprises 7.5% of all rape reported to criminal authorities51, the law of rape is constructed in a way that sees men as the sexual aggressor, and women the victim.52 This assumption can be linked to the phallocentric nature of the English legal system: the male body is by definition the penetrator/not penetrated, and the female body is also by definition the penetrated.53 In this way the law portrays men’s bodies as impenetrable to sexual assault.54 This inevitably leads to the myth that men cannot be the victims of rape: a myth that extends beyond national levels. For instance, there are well over one hundred uses of the term ‘violence against women’ – defined to include sexual violence – in UN resolutions, treaties, general comments and consensus documents, yet no human rights instruments 44 Harris (n 26), Office for National Statistics (n 38). 45 Don Dutton and Katherine White, ‘Male Victims of Domestic Violence’ (2013) 2(1) New Male Studies: An International Journal. 46 Bibbings (n 34). 47 Nancy Levit, ‘Feminism for Men: Legal Ideology and The Construction of Maleness’ (1996) UCLA Law Review 43 1055. 48 Dowd (n 7) 422. 49 Lara Stemple ‘Male Rape and Human Rights’ (2009) 60 Hastings Law Journal 628. 50 Nicola Gooch “The feminisation of the male rape victim” (2005) 12 UCL Jurisprudence Review 200. 51 Stemple (n 48) 606. 52 Gooch (n 49), Ruth Graham, ‘Male Rape and the Careful Construction of the Male Victim’ (2006) 15(2) Social Legal Studies. 53 Graham (n 51) 197. 54 ibid 188.

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explicitly address sexual violence against men.55 The assumption that men’s bodies are impenetrable to harm is also reflected in foetal protection legislation and policies. Despite the fact that male exposures to mutagens can effect sperm, and therefore development of the foetus, men’s reproductive rights under laws seem to be continually ignored as reproduction is conceptualised as a peculiarly – and visibly – female activity.56 Similarly, men appear to be treated more harshly by the law for antenatal injury to a child. For example, under the Congenital Disabilities Act 1976, aside from one exception, a woman will not be liable to her eventual child for antenatal injury, but a father can be held so liable.57 Thus, by focusing on the harms of men, both socially and legally, a more thorough gender analysis can be achieved that dismantles the rigid presumptions which keep us from seeing the complete picture.58 Highlighting inequalities still present, or drawing attention to men’s rights that are missing under law, is the first step to removing inequalities still embedded in legislation and policies. Additionally, an exploration of the ways in which men have been disadvantaged by the gender role stereotypes contained in legal doctrines will elucidate how masculinity is constructed.59 Third, feminist studies of women have undoubtedly assisted substantial change towards promoting a more gender-equal society. The exposure of women’s subordination under patriarchy inevitably fuelled support for equality laws in the UK, such as the Sex Discrimination Act 1975 and the Equal Pay Act 1970. Men’s studies can extend these achievements further, by reinforcing and facilitating change, not just for policy and law-makers, but for men themselves: it can offer new perspectives on masculinities of men that are in harmony with the goal of gender equality.60 In addressing the why questions, – why are men violent? Why do men seek dominance? – men’s studies expose a key challenge to traditional thinking: Why have issues of men been largely viewed as ‘women’s business’? By recognising that patterns of gender inequality are interwoven with social definitions of masculinity and men’s gender identities61, a transformation of responsibilities occurs. Gender issues that have historically 55 Stemple (n 48) 619. 56 Sally Sheldon, ‘Re-Conceiving Masculinity: Imagining Men’s Reproductive Bodies in Law’ (1999) 26(2) Journal of Law and Society 130-3. 57 ibid 136. 58 Stemple (n 48) 628. 59 Levit (n 46) 1055. 60 Brod (n 7), Robert Connell ‘The Role of Men and Boys in Achieving Gender Equality’ (2003) [pdf] Expert Group Meeting <http://www.ashanet.org/focusgroups/sanctuary/articles/Connell-bp.pdf> accessed 21 January 2014. 61 Connell (n 59) 4.

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been conceived as ‘women’s issues’62, – domestic violence, sexual assault, and rape – are uncovered as ‘men’s issues’. This revelation then exposes men to societal and personal pressure to reconstruct their gender identities in a way that positively benefits both men and women. Men are encouraged to move away from traditional and harmful understandings of masculinity – dominance, power, control, and aggressiveness – towards new forms of masculinities that fit easily with a pro-feminist, pro-gay and the pro-equality agenda63. In this way, masculinity can be viewed in a positive light where men are not asked to give up their manhood or maleness. Instead, they must allow the meaning of masculine to be transformed in a way that becomes disloyal to patriarchal masculinity in order to find a place for the masculine that does not make it synonymous with domination or the will to do violence.64 The restructuring of masculinity in a positive way is already taking place across the globe.65 There is now far-reaching acceptance of men as caring and nurturing at home66, with the emergence of the ‘new father’ who strives to be more of a physical presence in the lives of his children67. Furthermore, the “White Ribbon Campaign” in Canada and Men Against Sexual Assault in Australia are just two examples of men standing against the harmful consequences that arise as a result of traditional masculinities, such as violence. Ghoussoub68 and Peacock69 illustrate how these men’s movements are not just refined to Westernised countries: traditional gender concepts in both Arab and African countries are undergoing a dramatic transformation, with similar support for rapid change in social attitudes and laws. Essentially, if gendered hierarchies that subordinate women and men across the globe become undesirable in the quest for proving manliness, a decline in violence and sexual attacks may follow.70 The study of men could result in change that finally offers a permanent, rather than temporary, solution to gender inequality.

62 Erturk (n 4) 8. 63 Raewyn Connell, ‘The big picture: Masculinities in recent world history’ (1993) 22(5) Theory and Society 620. 64 Bell Hooks, The Will To Change (Washingtons Square Press 2004). 65 Lynne Segal, Slow Motion: Changing Masculinities, Changing Men (3rd edn, Palgrave MacMillan 2007). 66 Levit (n 46) 1073. 67 Sheldon (n 55) 149. 68 Mai Ghoussoub ‘Chewing Gum, Insatiable Women and Foreign Enemies: Male Fears and the Arab Media’ in Mai Ghoussoub and Emma Sinclair-Webb (eds), Imagined Masculinities (Saqi Books 2000). 69 Dean Peacock, ‘Building on a Legacy of Social Justice Activism: Enlisting Men as Gender Justice Activists in South Africa’ (2003) 5(3) Men and Masculinities. 70 Kirsten Anderson, ‘Violence Against Women: State Responsibilities in International Human Rights Law to Address Harmful Masculinities’ (2008) 26(2) Netherlands Quarterly of Human Rights.

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3. A RISK WORTH TAKING? Whilst studying men and masculinities can be seen as another step forward in efforts for achieving equality between men and women, its potential risks should not be overlooked.71 The biggest risk is displacing the focus on girls and women, or blaming women for men’s harms in a way that feeds into old stereotypes.72 For example, campaigns such as Fathers4Justice run the risk of transforming a seemingly acceptable protest relating to human rights into a women-hate campaign: the image of a woman with tape over her mouth on the homepage of its website is testimony to this. The study of men also runs the risk of redefining masculinity in a more oppressive manner than ever before: Robert Bly’s book Iron John is a clear example of masculinity viewed as nativist, separatic and homophobic.73 Furthermore, illustrating gender issues as not only women’s business but also the responsibility of men could put men in a position to use women for their own ends. This may also be facilitated through the deeply negative, constricting definition of manhood exposed by much masculinities analysis that has potential to isolate men from the feminist cause further.74 However, although masculinities studies carries some risks, it offers substantial benefits to feminist theories that are so profound they cannot (and should not) be ignored. Ultimately, masculinities analysis contributes to the goal of equality and jus75 tice. Men’s studies provide a number of useful additions to gender analysis. It displaces the assumption that men are the norm76; it reinforces the importance of intersectional factors such as race and class in the process of subordination77; it illustrates how gender violence can result from the pain of masculine identity78; it exposes harms to men embedded in legal systems79, and it recognizes violence and rape as ‘men’s issues’ that empower communities to reconstruct and challenge harmful masculinities.80 In short, providing masculinities work does not hijack feminist scholarship to

71 Erturk (n 4) 3. 72 Dowd (n 7) 424. 73 Connell (n 62). 74 Dowd (n 7) 430. 75 ibid. 76 Morgan (n 15), Brod (n 4). 77 Dowd (n 7), Harris (n 26). 78 Harris (n 26) 807. 79 Stemple (n 48), Graham (n 51). 80 Erturk (n 4), Francisco Valdes, ‘Unpacking Hetero-Patriarchy: Tracing the Conflation of Sex, Gender and Sexual Orientation to its Origins’ (1996) 8(1) Yale Journal of Law and Humanities 211

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reinforce patriarchy81; its contribution to providing a more robust gender analysis for feminist legal scholars could be great.

81â&#x20AC;&#x192;

Dowd (n 7) 419.

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Bibliography Books Middleton P, The Inward Gaze. Masculinity and Subjectivity in Modern Culture (Routledge 1992) Segal L, Slow Motion: Changing Masculinities, Changing Men (3rd edn, Palgrave MacMillan 2007) Chapters in edited books Bibbings L, “Boys Will be Boys” in Donald Nicolson & Lois Bibbings (eds) Feminist Perspectives on Criminal Law (Cavendish Press 2000) Ghoussoub M “Chewing Gum, Insatiable Women and Foreign Enemies: Male Fears and the Arab Media” in: Mai Ghoussoub and Emma Sinclair-Webb (ed), Imagined Masculinities (Saqi Books 2000) Morgan D, “Men, masculinity, and the process of sociological enquiry” in Helen Roberts (ed) Doing feminist research (Routledge & Kegan Paul 1981) Owen J, ‘Women-talk and Men-talk: Deﬁning and Resisting Victim Status’ in Rebecca Dobash, Russell Dobash and Lesley Noaks (eds) Gender and Crime (University of Wales Press 1995) Segel-Evans K, ‘Rape Prevention and Masculinity’ in Franklin Abbott (ed), New Men: Changing Minds, Hearts and Lives, How todays men are changing the traditional roles of masculinity (The Crossing Press/Freedom 1987) Journal articles Alfieri A, ‘Prosecuting Race’ (1999) 48(6) Duke Law Journal Anderson K, ‘Violence Against Women: State Responsibilities in International Human Rights Law to Address Harmful Masculinities’ (2008) 26(2) Netherlands Quarterly of Human Rights Bibbings L, ‘Images of Manliness: The Portrayal of Soldiers and Conscientious Objectors in the Great War’ (2003) 12(3) Social and Legal Studies Brod H, ‘The New Men’s Studies: From Feminist Theory to Gender Scholarship’ (1987) 2(1) Philosophy and Women Symposium Collier R, “Masculinities, Law and Personal Life: Towards a New Framework for Understanding Men, Law and Gender” (2010) Harvard Journal of Law and Gender 33(2)

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Connell R and Messerschmidt J, ‘Hegemonic Masculinity: Rethinking the Concept’ (2005) 19(6) Gender and Society Connell R, ‘The big picture: Masculinities in recent world history’ (1993) 22(5) Theory and Society Dowd N, ‘Asking the Man Question: Masculinities Analysis and Feminist Theory’ (2010) 33 Harvard Journal of Law and Gender —— ‘Masculinities and Feminist Legal Theory: An Antiessentialist Project’ (2009) 15 Wisconsin Women’s Law Journal No 2008-05 Dutton D and White K, ‘Male Victims of Domestic Violence’ (2013) 2(1) New Male Studies: An International Journal Erturk Y, ‘Considering the Role of Men in Gender Agenda Setting: Conceptual Policy Issues’ (2004) Feminist Review 78 Graham R, ‘Male Rape and the Careful Construction of the Male Victim’ (2006) 15(2) Social Legal Studies Gooch N, ‘The feminisation of the male rape victim’ (2005) 12 UCL Jurisprudence Review 200 Harris A, ‘Gender Violence, Race, and Criminal Justice’ (2000) 52 Stanford Law Review 779 Levit N, ‘Feminism for Men: Legal Ideology and The Construction of Maleness’ (1996) 43 UCLA Law Review 1055 Mari Matsuda, ‘Beside My Sister, Facing the Enemy: Legal Theory Out of Coalition’ (1993) 43 Stanford Law Review Peacock D, ‘Building on a Legacy of Social Justice Activism: Enlisting Men as Gender Justice Activists in South Africa’ (2003) 5(3) Men and Masculinities Sheldon S, ‘Re-Conceiving Masculinity: Imagining Men’s Reproductive Bodies in Law’ (1999) 26(2) Journal of Law and Society 130 Stanko E and Hobdell K, ‘Assault on Men: Masculinity and Male Victimization’ (1993) 33(3) British Journal of Criminology 400 Stemple L, ‘Male Rape and Human Rights’ (2009) 60 Hastings Law Journal 628 Valdes F, ‘Unpacking Hetero-Patriarchy: Tracing the Conflation of Sex, Gender and Sexual Orientation to its Origins’ (1996) 8(1) Yale Journal of Law and Humanities 211 Meeting reports Connell R, “The Role of Men and Boys in Achieving Gender Equality” (2003) [pdf]

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Expert Group Meeting <http://www.ashanet.org/focusgroups/sanctuary/articles/Connell-bp.pdf> accessed 21 January 2014 Statistics Office for National Statistics, ‘Suicides in the United Kingdom, 2011’ 22 January 2014 Office for National Statistics [pdf] <http://www.ons.gov.uk/ons/ dcp171778_295718.pdf> accessed 21 January 2014