Commonwealth Games Success for Bristol Law School Alumni

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Bristol Law School alumni Eboni Beckford-Chambers wins gold 2018 Commonwealth Games in Australia.

Eboni  won gold with the women’s Netball team, which beat Australia dramatically with a last second goal. Eboni is a trainee solicitor at the firm of Mogers in Bath and is due to qualify as a solicitor in September. She studied her LPC at UWE in 2010/11, and then concentrated on her netball career, playing in Australia for West Coast Fever and the Adelaide Thunderbirds. She moved back to Bath in 2015 and is currently captain of Team Bath. Before taking up a position at Mogers, Eboni paralegalled in both Australia and the UK.

Congratulations to Eboni and the rest of the team on this impressive achievement!

Environmental Law Student Conference 2018

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Elena Blanco, Associate Professor and Acting Head of the Environmental Law Research Unit hosted this year’s event at UWE on 14 March. Now in its fourth year, the Environmental Law Student Conference provides students with an opportunity to present on topics featured in their studies of environmental law, globalisation and natural resources law. Students of Environmental Law from our undergraduate (LLB) and postgraduate courses (LLM and PhD) were joined by students from the Universities of Cardiff and Swansea. The conference also provides the opportunity to network, socialise and share ideas with students from different law schools in the region.

The organising student committee at UWE was integrated by Cleverline Brown (PhD student); Siti Binti  Rosli (LLM) and Saluuga Hassan (LLB 3rd year). The students selected the different panels: on Human Rights and the Environment; Climate Change and Trade, Technology and the Future of Environmental Challenges. A variety of students from UWE and Cardiff University participated by giving excellent, provocative and confident presentations and engaging on an open and lively discussion with the audience. Students from Swansea chaired panels and contributed to the discussion.

The day was inspiring and engaging with a wide range of topics featured in the presentations including, pollution caused by business activities, environmental pollution, access to water in Israeli occupied Palestinian territories, the need for supranational governance on Climate Change and, the legal implications of  alternatives on environmental discourses. From the practical and topical to the conceptual our students showed a keen interest on environmental and sustainability matters as well as in being ‘part of the solution’ to environmental challenges from a variety of political and conceptual points of view.

This year a prize was offered to the best presentation by the United Kingdom Environmental Law Association (UKELA), Wales Working Party. The presentations are to be judged by members of UKELA WWP who are legal professionals from Cardiff-based chambers and law firms. The winner will be granted a year’s free membership of this organisation!

The twenty four participants found the event extremely valuable, well organised and run, fun, fluid and well spaced out with a great balance of time to share views and informal discussion and some more formal presentations.

Individuals commented (on the feedback sheets returned to the organisers) on how much they enjoyed the opportunity to present in public beyond the classroom and beyond their own university but among such a friendly and welcoming like-minded group of people.

Thomas Neill, a final year LLB student at Swansea University, said: “I found the conference really enjoyable, there were a high quality and varied set of presentations which lead to some really interesting debates. It was also good to be able to network with students from other law schools and hear their thoughts on the issues facing environmental law and enforcement. I found it refreshing to have a wider discussion on environmental law rather than focusing on the issues relevant to my own course.”

Tobechukwu Kanayo Okonkwo, another final year LLB student who attended, said: “My time at the Environmental Conference was an enlightening experience. It allowed me to meet like-minded people and open my mind to different perspectives concerning the environment.”

Our talented students found the experience extremely valuable and offered them the opportunity to gain invaluable skills and to showcase their fantastic work further

Former Bristol Law Society President donates collection to UWE Bristol Law School

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John Lyes, a past president of Bristol Law Society, has donated his collection of books and materials on the history of the legal profession with especial focus on the legal profession of Bristol to UWE. Amongst the papers were a copy of John’s own history of the first two hundreds of Bristol Law Society, his monograph about the early history of the solicitors’ profession, and a pristine copy of the 1959 Solicitors Finals Exams.

Handing the papers over to Marcus Keppel-Palmer (Law), John said that he could not think of a better home for the collection given UWE’s history in the teaching of professional vocational courses.

John was in fact one of the very first graduates from UWE’s law programme. However, at the time this was the Bristol College of Commerce which taught the London External Law Degree at the time. After doing National Service, John worked at the Customs & Excise Department, before taking night school classes to study for a Law degree. One of the lecturers at the time was Alan Lamb, who offered John a position with his firm for John to do the necessary three year period of articles. John was in the very first intake to be paid – articled clerks had previously had to pay to do articles – and he was paid the princely sum of £4 a week.

John sat the Finals Exams in 1959, consisting then of 12 three hour papers taken over a week and a half, before qualifying as a solicitor in 1960. He then rose through the ranks of the firm that was Lawrence Tucketts, now a part of TLT, being the managing partner of the Kingswood Office. The office is now a Thai Restaurant. John was active in the Bristol Law Society, becoming President in 1980. One of his achievements during the year of office was to inaugurate the regular visits between the Bristol Law Society and the Bar of Bordeaux, the latter being twinned with Bristol. John recalls that the latter Bar was motivated in part by changes in French tax laws which meant that undrunk wine was to be taken into account for taxation, unless it was used for business purposes!

After retiring from practice, John pursued his passion for local history, enrolling at UWE and doing a MA in Local History at St Matthias, which led to him publishing monographs on the history of the local legal profession and also the history of Bristol Law Society. Most recently, to mark the hundred year anniversary of the Great War, John published a monograph, in conjunction with Bristol Law Society, on the Bristol Law Society during the First World War.

UWE Law students win big at two national mediation competitions

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Bar Professional Training Course (BPTC) students, David Forster and Sara Harrison-Fisher, represented UWE Bristol at the Worshipful Company of Arbitrators Mediation Competition in London on 19-21 January, competing against teams from other Universities, trainee solicitors and pupils.

They walked away with prizes for the Best University Team and the Past Master Karl Davies Memorial Award which was awarded to the team with the Most Creative Solution.

Lucilla Macgregor who, along with her fellow BPTC tutor Sara Whiteley, mentored the pair in preparation for the competition said:

“David and Sara did extremely well in the face of stiff competition.  This is the second time in two years that UWE BPTC students have won a prize at this event, which gives them a fantastic opportunity to practice their advocacy and negotiation skills in front of accredited mediators”.

BPTC students and tutors

The following weekend saw Law undergraduates, Jade Trill, Callum Tucker, James Hathaway and Jack Kaczanowski, competing in the UK National Student Mediation Competition, held at ULaw in London.

The team won the awards for Best Mediation Team, Best Mediator (Jade) and Second Best Mediator (Callum), beating undergraduate and post-graduate teams from 16 universities around the UK.

Their coach, Rachel Wood, said:

“This is a fantastic achievement for the team, particularly as this is the first time we have entered the National Competition.  The students have studied mediation and practised their skills in our internal UWE Mediation Competition. It is wonderful to see their skills being recognised by professional mediators judging them in a national competition”.

UWE Bristol now expects to host the UK National Student Mediation Competition in January 2019.

Student blog: What Are the (Dis)Advantages of a Collective Security Mechanism Based on ‘an attack upon one… is an attack upon…. all’ as Enshrined in Article 5 of the NATO Treaty?

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This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. We offer this module in the second year of Bristol Law School’s LLB programme. It is led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module includes the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication. Continue reading “Student blog: What Are the (Dis)Advantages of a Collective Security Mechanism Based on ‘an attack upon one… is an attack upon…. all’ as Enshrined in Article 5 of the NATO Treaty?”

Student post: Are the Legal Regimes Governing Piracy Efficient?

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This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. We offer this module in the second year of Bristol Law School’s LLB programme. It is led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module includes the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication.

Author: Luc Edwards

As a trade route, the Strait of Malacca accounts for a quarter of the world’s traded goods, with over 94,000 vessels sailing through every year. The narrow stretch of water, located between Peninsular Malaysia, Singapore and Sumatra, Indonesia, has historically been particularly susceptible to pirate attacks. This is due to a combination of elements, ranging from its importance as a trade route to the geography of the waterway, compounded by the historical influence of piracy in the area. This blog aims to investigate, using the Strait of Malacca as an example, the effectiveness of legal regimes in combating maritime piracy.

One common misconception regarding maritime piracy is the belief that piracy is most prevalent in the waters surrounding Somalia and Guinea. However, between 1995 and 2013, the Strait of Malacca and the surrounding seas accounted for over 41% of the world’s pirate attacks – dwarfing that of the 28% staged in the Indian Ocean. This 18 year period also resulted in the reported loss of life for 136 seafarers – surpassing that of both the Indian Ocean and West African Coast combined.

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Heather Jones / Time; Source: ICC CCS (reproduced here)

Under Article 101 of UNCLOS, piracy is defined as ‘any illegal act… …containing violence… …that takes place on the high seas’. This wording effectively renders the provision unenforceable in the area due to the definition of ‘high seas’ under Article 1 of Convention on the High Seas, as the Exclusive Economic Zones of the three littoral States, as per Article 55 of UNCLOS, encompass the entire waterway – meaning due to the partial assertion of State sovereignty, the Straits cannot be defined as such. The ineffectiveness of UNCLOS in this respect has led the littoral States to attempt to use other methods to combat the seemingly perpetual issue of piracy in the area.

The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against ships in Asia (ReCAAP) offers us one example of State collaboration in the effort to prevent piracy in the Strait. There are 20 States party, including a host of Asian countries, such as Singapore and Vietnam, as well as those less proximate to the Strait itself, for example Norway. Malaysia and Indonesia, however, are notably absent. Since its entry into force in 2006, the ReCAAP Information Sharing Centre (ISC) was launched in Singapore, where it has since become recognised as an international organisation as of January 2007. Used mainly as a central platform for information exchange between signatories and their respective ReCAAP Focal Points – usually the partying State’s main outlet of combating piracy such as the Maritime Port Authority of Singapore – the ISC is also used to cooperate with other like-minded organisations, whilst simultaneously facilitating capacity building efforts in a bid to improve the capabilities of States party in fighting piracy.

Along with the introduction of ReCAAP, Indonesia, Malaysia and Singapore have all increased efforts to eradicate piracy in the area. However, problems have arisen as a result of this due to factors such as allegations that Indonesia views Malaysia and Singapore as direct economic competitors as opposed to strategic allies – arguably supported by Indonesia’s absence from ReCAAP. The economic divide between the three aforementioned States also conceivably exacerbates the problem, as despite Indonesia’s relatively strong GDP, the difference in population results in Indonesia’s GDP per capita of $3,636 – with Malaysia and Singapore holding respective figures of $9,546 and $53,053. Naturally, those who have not reached a post-material existence may be more inclined to engage in criminal activity, for example, piracy – a simple solution considering Indonesia’s archipelagic coastline stretches for over 54,716km – with (Anderson, ‘It’s a Pirate’s Life for Some: The Development of an Illegal Industry in Response to an Unjust Global Power Dynamic’ (2010) 17 Indiana Journal of Global Legal Studies 319) using Somalian piracy to illustrate the phenomenon.

However, despite initial resistance from Indonesia to cooperate with other States, the Malacca Straits Coordinated Patrol (MALSINDO) was launched by Singapore, Malaysia and Indonesia in 2004 – although this has been hindered by the patrols inability to travel into territorial waters in effort to preserve State sovereignty. This reluctance can also be shown to have waned further, through cooperation between States reasonably proximate to the area, exampled through the Indian participation in the patrols following 2006 and Indonesia’s crucial involvement in China’s Maritime Silk Road initiative, which will naturally strengthen the patrolling forces.

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Although piracy is still an issue in South-East Asia, the regional and international efforts to combat piracy in the Straits can be shown to have had at least some effect, as illustrated by the above graph. Whilst the same graph exhibits an increase in incidents following 2011, it is clear that the scale of piracy in the area has been reduced – notably so following 2004; undoubtedly due to the introduction of MALSINDO on a regional level alongside the international efforts under ReCAAP. This therefore shows that, despite the shortcomings of the relevant UNCLOS provisions, the legal regimes governing piracy in the Strait of Malacca can be deemed efficient.

Student blog: How Can a State Control Pollution around its Landmass?

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Author: Adrianna Nowak

This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. We offer this module in the second year of Bristol Law School’s LLB programme. It is led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module includes the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication.

For many years states marginalised the problem of pollution caused by shipping. The International Maritime Organization in the beginning of its work dealt mainly with maritime safety. In the 1950s, States started recognizing the issue of oil spills. The result was the International Convention for the Prevention of the Pollution of the Sea by Oil. The Convention established prohibited zones with limits of discharge. Still, pollution was a minor concern of the International Maritime Organization. Torrey Canyon, the biggest oil spill up to that time, raised the question about the necessity of further regulations. Accordingly, after the IMO’s extraordinary session, in 1973 the International Convention for the Prevention of Pollution from Ships  (MARPOL) was adopted. My post aims to discuss how a State can control pollution caused by shipping using MARPOL and the United Nations Convention of the Law of the Sea (UNCLOS), the main focus being on pollution caused by oil (see video on the extent of the problem). The adoption of these two conventions was indeed the start of States properly addressing the issue of pollution. However because of the lack of cooperation between well developed countries with developing ones, full effective control of pollution still remains difficult (see eg the issue of the flag of convenience).

The Issue of Enforcement

Oil spills, which are less frequent than other causes of sea pollution, have nevertheless devastating effects. The consequences of this kind of incident are twofold: irreversible damage to marine life and very high costs of cleaning up the polluted area (see eg Exxon Case before the US Supreme Court). Annex I of MARPOL deals with the prevention of pollution by oil. This part of the Convention incorporates the oil discharge criteria, the requirements of the equipment and the mandatory obligation of the Oil Record Book for every cargo vessel. Each State is responsible individually for the implementation of domestic regulations which comply with the rules of the Convention. As the International Maritime Organization has however no power to enforce its rules (Szepes, ‘MARPOL 73/78: The Challenges of Regulating Vessel-Source Oil Pollution’ (2013) 2 Manchester Student Law Review 73, 87), it is very important for States to control pollution around their landmass by monitoring foreign flagged vessels around their territory. Even if there is no legal body to enforce MARPOL’s rules, it is yet necessary for the International Maritime Organization to be aware which vessels are the main causes of the pollution as this can lead to consultations with States which violate the Convention.

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Office of Response Restoration, 25 Years Later: Timeline of Recovery from the Exxon Valdez Oil Spill

Jurisdiction of a Coastal State and its Need for Cooperation

Ships are able to be a subject of more than one system of law, which can be national, regional and/or international. The example set by Torrey Canyon showed that the application of domestic law by an injured State over its territorial waters alone is not enough to control the emission of pollution by foreign flagged vessels. As a matter of fact, the disaster revealed an issue regarding the operation of the law around a coastal state. Initially, the UN Convention on the Law of the Sea gave a coastal state the power to enforce its national legislation only within its territorial waters (Article 2 UNCLOS). As a result of the French and British reactions to the Torrey Canyon disaster, a coastal state can now enforce domestic law within its exclusive economic zone (Article 56 UNCLOS). UNCLOS extended the jurisdiction of a coastal state over its exclusive economic zone but only when a vessel which violated law in the Exclusive Economic Zone, entered that State’s port (Article 220(1) UNCLOS). Coastal state is also empowered in special situations to arrest and detain a vessel which violated its law (Article 220(6) UNCLOS). The degree of a coastal state’s power seems to be high but without the cooperation of flag states, being successful in controlling pollution is not possible. The jurisdiction of a coastal state within its exclusive economic zone is limited and applies only when the violation is serious. In all scenarios where an infringement is not significant a coastal state depends on the flag states’ jurisdiction (Szepes, ‘MARPOL 73/78: The Challenges of Regulating Vessel-Source Oil Pollution’ (2013) 2 Manchester Student Law Review 73, 94-96)On the high sea, jurisdiction always shifts to the flag state and it is rather alarming that only a small percentage of investigations result in convictions and fines (Szepes, ‘MARPOL 73/78: The Challenges of Regulating Vessel-Source Oil Pollution’ (2013) 2 Manchester Student Law Review 73, 91).

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Garry Taylor, ‘The Law of the Sea and “Creeping Jurisdiction” of Coastal States’, 21 July 2015

MARPOL and UNCLOS are the most important treaties that define the legal framework governing States’ ability to control pollution. When properly implemented by their parties, they can be successful instruments of control of pollution. The problem is that because of economic convenience, owners of world’s merchant tonnage do not register their vessels in States where environmental protection is an important matter. A high percentage of representatives of the world’s trade industry argues that the costs related to the registration of vessels in developed countries are too high and thus reduce their ability to make profits. For many States, applying high standards of environmental protection is still difficult and the only way to be successful in this area is to cooperate and support developing countries. Small steps, like increasing environmental awareness in developing countries, can help with the improvement of the control of pollution; without it, the world might be in the near future be faced with the problem of the mass extinction of certain marine species.

Student blog: The UWE Freedom of Speech Policy and the European Convention on Human Rights

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Author: Xavier Baker

This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. We offer this module in the second year of Bristol Law School’s LLB programme. It is led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module includes the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication.

In recent years, freedom of expression on university campuses has been a hot topic. Political figures, prominent journalists and spirited students have waged into the heated discussion, fanning the flames of the debate and polarising opinion.

On the surface, UWE appears to be compliant with the European Convention on Human Rights (ECHR), defining the extent of free speech in the Freedom of Speech Policy. However, I will be arguing that there are numerous flaws within university policies and practices that hinder their ability to fulfil key societal roles.

‘Freedom of expression is a fundamental British value…’ (see video) and a qualified right found in Article 10 of the ECHR. This includes the freedom to hold opinions and receive and impart information; each element is crucial to the functioning of higher education facilities.

However, I believe that in the modern day universities have lost sight of their role in society. They should be institutions that secure free speech, expand public knowledge, stimulate ideas and develop global leaders for the future. This is being compromised by limitations on free speech.

In my view, UWE’s policy raises several concerns, thus reducing the extent to which the university complies with Article 10 of the ECHR. The most controversial section of the policy is paragraph 6 (2) which states that reasons for refusing access to premises ‘…include, but are not limited to…’ the list within paragraph 6, and at the discretion of senior members of staff (paragraph 10). This suggests that, although unlikely, UWE has the potential to not allow any events, regardless of the potential offence caused. Despite Article 10 (2) permitting restrictions to freedom of expression in a democratic society that relate to ‘public safety’ and ‘prevent disorder or crime’, I feel that UWE’s document lacks clarity. Consequently, the extent of compliance is muffled by the level of ambiguity. Moreover, the Court’s jurisprudence (see eg Özgür Gündem v Turkey, 16 March 2000, paragraph 43) displays the vital importance of free expression for the well-functioning of democratic societies.

Looking at paragraph 6 of the UWE Free Speech Policy in more depth uncovers further areas of controversy. For example, paragraph 6 (2) iii explains that UWE refuses access to premises where events are ‘…likely to give rise to an environment in which people will experience, or could reasonably fear…’ abuse, violence and/or intimidation. The case of Ceylan v Turkey (8 July 1999, paragraph 34) supports the argument that UWE’s policy complies with the Court’s interpretation because ‘a wider margin of appreciation’ is said to be given to States if expressions incite violence. However, the Court has continually reiterated that Article 10 protects expressions ‘…that offend, shock or disturb.’ (Handyside v UK, 7 December 1976, paragraph 49). Students Unions banning pop song Blurred Lines throughout 2013 epitomizes the result of inconsistencies in the interpretation of Article 10 by the Court, and the extent to which receiving and imparting information in universities has been restricted (see here). Nevertheless, UWE is only compliant with the Court’s interpretations of Article 10 where access to facilities for events is denied due to genuine risks to public safety and possibilities of disorder or crime.

As a consequence of questionable policies and practices, many students claim a ‘right’ not to be offended. From a legal perspective this strongly conflicts with securing freedom of expression, an opinion supported by Baroness O’Neill. As a panellist at Theos Annual Lecture in 2015, O’Neill explained that there cannot be a human right ‘not to be offended’ because ‘offence’ is subjective (see here). Echoing O’Neill’s opinion, I oppose the Safe Spaces and No Platform policies that UWE is subject to as a member of the NUS, as explained by current NUS president in this video.

I feel that the Safe Spaces policy is an example of the NUS crumbling under government pressure to protect Britain against the rising threat of extremism and terrorism. This has unfortunately occurred at the expense of freedom of expression. The Counter-Terrorism and Security Act 2015 (Section 31) adds further legal responsibilities to an extensive list of statutes that influence university policies (see diagram below). The 2015 Act encourages universities to interact with the Prevent Strategy, referenced by paragraph 2 of UWE’s policy. However, government reasoning is flawed because although statistics show that one third of Islamism-related terrorist offences between 2005-2015 were committed by graduates, this is in line with the proportion of the general population that have attended higher education institutions (see here, paragraph 10).

 

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© Xavier Baker

I will always condemn expressions that cause offence, and I am sympathetic towards universities as they are under pressure to provide safe, comfortable learning environments. However, I feel that universities should be facilitating debate, equipping students during their studies with skills that enable them to confidently combat hate speech. Therefore, despite being largely compliant with Article 10 of the European Convention on Human Rights and its interpretation, because UWE is subject to numerous laws and policies, students and academics are overprotected to the extent that the residues of free speech are constrained.

Student blog: How Does the UN Contribute to International Peace and Security by Means of ‘Peacekeeping’?

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Author Jade Trill 

This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. We offer this module in the second year of Bristol Law School’s LLB programme. It is led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module includes the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication.

One of the United Nations’ main aims is to contribute to establishing international peace and security through peacekeeping (Article 1(1) UN Charter). The UN suggests that it is successful in these aims as research credits the UN’s peace operations to be a major factor behind a 40% decline in worldwide conflicts since the 1990s, having therefore significantly safeguarded international peace and security. A major method of peacekeeping employed by the UN is that of traditional peacekeeping operations (see United Nations Peacekeeping Operations. Principles and Guidelines (Capstone Doctrine), 2008, 18); these are financed through the regular budget of the UN as permitted by the ICJ Advisory Opinion on Certain Expenses.

In this blog I will be arguing that the UN does not contribute to international peace and security but instead creates everlasting stalemates between conflicting parties and allows continued fighting despite peacekeepers’ presence. To illustrate this I will be evaluating the role of traditional peacekeeping operations in attempting to create international peace and security. However I will not be commenting on conflict prevention and peacemaking, peace enforcement nor peace-building operations that the UN also partakes in. The reason for this choice is twofold. First, as traditional peacekeeping operations were the first style of peacekeeping introduced they should best illustrate the UN experience in contributing to international peace and security. Second, traditional peacekeeping operations offer the most interesting case studies for showing the extent the UN will or will not go to, to contribute to peace and security.

Traditional Peacekeeping

Within traditional peacekeeping operations, the methods used for establishing peace and security are: separating conflicting parties, peacekeepers acting as a presence and therefore a deterrent to parties attempting to resume the conflict, creating and monitoring a buffer zone between the conflicting sides or a troop withdrawal agreement as well as maintaining a ceasefire.

The principles that must be followed for a lawful peacekeeping mission to occur are found under Chapter VI UN Charter. These principles are: the consent of the State to allow for the presence of peacekeepers; the impartiality of the peacekeeping forces; and that no military force will be used except in self-defence (see discussion in Müller, ‘The Force Intervention Brigade – United Nations Forces beyond the Fine Line between Peacekeeping and Peace Enforcement’ (2015) 20 Journal of Conflict and Security Law 359).

Buffer Zones and Ceasefires

I do not dispute that the methods deployed in traditional peacekeeping are crucial as an initial step to establishing international peace and security. However, surely, to be successful in achieving true peace and security in States where a conflict has occurred, this means that gradually with the aid of the peacekeepers the tension between the opposing sides reduces and the State starts to function independently and peacefully again. Unfortunately the UN does not seem to believe this is the case as it has ‘spearheaded a process of redefining peace in tight conjunction with respect for the continuing influence of militaries’ (see Kühn, ‘The Peace Prefix: Ambiguities of the Word “Peace”’ (2012) 19 International Peacekeeping 396) and as well as this, seems unable to work towards this successfully as in cases like Cyprus. In this case peacekeepers were sent in in 1964 after the Security Council adopted resolution 186 which established UNFICYP owing to fighting between Greek and Turkish Cypriots. The fact that peacekeepers have been in Cyprus for 53 years with renewed mandates every 6 months upon the advice of the Secretary-General, and that due to there being no formal ceasefire agreement the ‘UNFICYP has been confronted with hundreds of incidents each year’ along the buffer zone clearly shows that the UN are not actively pursuing peace and security for Cyprus.

Similarly, peacekeeping operations have been in place in the Golan Heights since the United Nations Security Council adopted resolution 350 in 1974 which established UNDOF and, yet, despite the amount of time that peacekeepers have been in the area, there has been no noticeable improvement in attaining peace and security to the point where ending the mission has become a possibility.

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Cyprus Peace Deal Close, Says UN Chief After Geneva Talks’, 12 January 2017
Syria Conflict: UN Peacekeepers Held in Golan Heights’, 29 August 2014

Self Defence

As stated before, UN peacekeepers cannot use force when partaking in tradition peacekeeping operations unless in self-defence (Chapter VI UN Charter). I argue that this limitation on the types of actions undertaken by ‘traditional’ peacekeepers dooms the UN to being unable to contribute to international peace and security as it allows for a conflict (potentially including acts of barbarity) to flare in front of peacekeepers, or to continue without their interference as traditional peacekeeping is not intended to ‘force belligerents to cease their hostilities’ (See Müller, ‘The Force Intervention Brigade – United Nations Forces beyond the Fine Line between Peacekeeping and Peace Enforcement’ (2015) 20 Journal of Conflict and Security Law 359, 364) as in the context of Somalia and UNOSOM I when ‘continued fighting and insecurity’ hampered relief efforts. The fact that the UN allows continued fighting to occur without intervening simply on the basis that the peacekeepers were not directly attacked, therefore inhibiting regrowth and the stabilisation of the civilian population, unquestionably supports the idea that UN traditional peacekeeping does not contribute to international peace and security.

Conclusion

Therefore it seems that due to the UN’s failure to actively seek to eradicate tensions rather than simply keep them at bay as well as allowing continued fighting to occur in front of peacekeepers without permitting their intervention to protect civilians and therefore create greater security, traditional peacekeeping operations do not enable the UN to contribute to international peace and security.

Student blog: What Are the Key Characteristics and Legal Achievements of the ASEAN Economic Community (AEC)?

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Author: Mohammed Motara

This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. We offer this module in the second year of Bristol Law School’s LLB programme. It is led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module includes the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication.

Having been formally established in 2015 by the Association of Southeast Asian Nations, the ASEAN Economic Community is classified as a single market with a rising star status (video below). With the purpose of fulfilling the economic elements of ASEAN (see Article 1(2) of the ASEAN Charter), the AEC required a blueprint setting out goals and ambitions of a successful ASEAN Economic Community. Bearing in mind the age of the ASEAN Economic Community (AEC), fair competition is pivotal in developing each ASEAN Member State’s markets (Cassey & Fukunaga, ‘ASEAN Regional Cooperation on Competition Policy’ (2014) 35 Journal of Asian Economics 77, 78); as well as attracting Foreign Direct Investments. The four characteristics, and more particularly the second one, of the AEC are closely linked to competition. Accordingly, I will explain the four characteristics of the AEC, and subsequently discuss the astute approach taken by ASEAN in terms of competition policy and whether this approach can be deemed a legal achievement.

The Four Characteristics

The decision to create the AEC can be described as a milestone in the history of ASEAN. In effect, this has led ASEAN closer to replicate the successful characteristics of the European Union, i.e. free movement of goods, people and the elimination of import tariffs between Member States. In order for the AEC to reach the heights of the European Union, the AEC should bear similar characteristics. These features are highlighted within the Blueprint (see picture below).

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Kong Ying, ‘What are the AEC’s Four Pillars’, 5 April 2015

The first characteristic of the AEC comprises of five elements (see A1- A5). All five elements are to be achieved through the reduction in tariffs (paragraph two), the adoption  of mutual recognition agreements such as architectural services and the creation of an ASEAN single window to aid the liberalisation of trade and investment flow. The second characteristic on the other hand refers to the regulation/deregulation of the region through the development of strengthening consumer protectionintellectual property rights and, most importantly, competition policy (see 1.13).

The third and fourth characteristics relate to overarching ideas. The third characteristic deals with improving the development of both SME’s (definition) and macroeconomic conditions within AEC Member States through SME initiatives whilst the fourth tackles the increasing role of ASEAN within the international community (a characteristic which is being addressed through Regional Comprehensive Economic Partnership negotiations).

Competition Policy 

ASEAN’s soft law approach to competition is at present effective; however, long term the approach appears futile. Thus, the European Union’s hard law approach should be considered. Classified under the second characteristic of the AEC, the blueprint (see part B) refers to competition policy through the use of a variety of modes: discussion forums, regional guidelines on competition policy and the ASEAN Experts Group on Competition. This is in complete contrast to the EU  where EU bodies implement and enforce supranational law, with the goal of allowing firms to compete on a level playing field in all EU Member states (Sivalingam, ‘Competition Policy and Law in ASEAN’ (2006) 51 Singapore Economic Review 241, 302).

So why is ASEAN’s approach effective at present? By taking a soft law approach, ASEAN has considered several factors uncommon to the EU such as the fractured development levels of its Member States. If the opposing EU approach were taken, whereby the ASEAN implements generic competition law for all of the ASEAN Member States based upon the same level of competence (second Copenhagen criterion), irrespective of the Member State having developed, developing or undeveloped markets, this could have a detrimental effect on the AEC Member States, in fact, potentially, supressing certain Member States’ growth.

For example, the situation of Brunei, a State with a debt amounting to 3.17% of the State’s GDP can be contrasted to that of Indonesia, with a debt amounting to 27% of the State’s GDP. It is submitted that imposing a set of complex supranational law in addition to an enforcement agency would worsen the various the AEC Member States’ economic situations (dependent upon the funding of the agency i.e. proportionate State contribution (see ‘contracting costs’ section in Abbott & Snidal, ‘Hard and Soft Law in International Governance’ (2000) 54 International Organization 421). Alternatively, when one looks at the non-pecuniary loss such as a loss of sovereignty with regard to the competence of negotiating and concluding international trade agreements (see Article 3(2) of the Treaty on the Functioning of the European Union), some AEC Member States may encounter potential political problems (see ‘sovereignty’ section in Abbott & Snidal, ‘Hard and Soft Law in International Governance’ (2000) 54 International Organization 421).

Choosing such an approach has allowed AEC Member States to develop competition law at their own pace to level the playing field (Huda, Nugraheni & Kamarudin, ‘Harmonizing Competition Law in the ASEAN Economic Community’ (2016) 9 International Journal of Business, Economics and Law 48, 52) with the aid of ASEAN through the use of guidelines and the ASEAN Experts Group on Competition (Cassey & Fukunaga, ‘ASEAN Regional Cooperation on Competition Policy’ (2014) 35 Journal of Asian Economics 77, 87). This has ensured that each Member State is able to tailor its competition laws to the State e.g. Singapore allowing vertical agreements (see 2.12 in the Competition Commission of Singapore Guidelines on the Section 34 Prohibition) whilst other States such as Malaysia prohibiting them (Section 4 of the 2010 Competition Act 2010 of Malaysia), reducing the likelihood of stagnating growth within potentially vulnerable markets.

For all the merits of using soft law, a hard law approach similar to the EU is the most effective. EU law is uniform as the EU has exclusive competence in ‘the establishing of the competition rules necessary for the functioning of the internal market’ (Article 3 of the Treaty on the Functioning of the European Union) and thus discrepancies under competition law are rare (in contrast, see table below for a comparison with AEC Member States). In return, what you achieve is a sustainable single market, the ultimate goal of the AEC.

table 7
Sivalingam G, ‘Competition Law and Policy in ASEAN’, (2006) 51 Singapore Economic Review 241, 249

In conclusion, the route taken by the ASEAN to encourage a competitive AEC is one that was wisely thought out and clearly addressed problems that would be encountered if taking a hard law approach. However, it is argued that to adopt this soft law approach long term would be nonsensical. The adoption of the hard law approach is by nature the most effective approach providing each of the ASEAN with the possibility to reach a benchmark level of development.