Guest Talk – Professor Emily Reid: Securing the Future of the World Trade Organisation

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In November, Professor Emily Reid from Southampton Law School gave a guest talk entitled “Securing the Future of the World Trade Organisation“. Read the recap of the talk below:

For more than the last decade the WTO and ‘globalisation’ has been the subject of sporadic public protest, exemplified by events in Seattle in 1999. More recently, the last decade has seen in Europe a growing number of popular demonstrations against a range of trade and investment treaties such as the Comprehensive Economic and Trade Agreement (CETA) between Canada and the EU and the Transatlantic Trade and Investment Partnership (TTIP) between the US and the EU. Frequently disquiet has focussed upon a perceived conflict between economic liberalisation or indeed globalisation itself and social or environmental values. Reference to these protests and public sentiment formed the backdrop to Professor Emily Reid’s guest talk at UWE on 1 November 2017. Prof Reid, an expert in international economic law and sustainable development, examined how the World Trade Organisation is defending and can defend such non-economic interests whilst still holding a liberal view of trade relations. Her passion for the subject is drawn from her previous work on how the European Union has managed to accommodate the protection of human rights and environment with economic liberalisation, and extrapolating from this the lessons which the global community might learn from that. (see E Reid, Balancing Human Rights, Environmental Protection and International Trade: Lessons from the EU Experience (Hart 2015))

Prof Reid began by noting the growing diversity of legal orders, pursuing a range of objectives, both economic and non-economic, highlighting that the interrelationship between social, environmental and trade elements is complex and evolving. Whilst these three elements can clash in particular instances, they are not inherently in conflict and in the longer term they are, indeed, mutually dependent, as is evident in the concept of sustainable development.

The broader question relates to the legitimacy of this economic organisation inasmuch as its policies and decisions have been the subject of criticism by some for failing to take sufficient account of human rights and environmental concerns. The fragmentation of international law with its variety of actors and self-contained regimes further complicates the task: who are the regulatory decision-makers? Wherefrom does their legitimacy stem? How are they accountable and to whom? These pressing concerns are no doubt difficult challenges for States operating in a new legal order, in which the role of the state is radically different to that under the ‘Westphalian’ order in which the WTO was created. How can the State in a Westphalian sense of the term deal with this multiplicity of actors? How can (local) democratic accountability be secured?

In addition, the international legal context has considerably evolved in the past decades as the WTO has had to engage with the emergence of new popular concerns, such as environmental protection, and their associated legal regimes. Indeed when the General Agreement on Tariffs and Trade (GATT) was negotiated, the definition of ‘conservation of natural resources’ as an exception to the trade rules was understood in terms of mineral resources. The WTO has since, however, acknowledged that a modern understanding of the term was needed. Such recognition is crucial to the ongoing relevance and legitimacy of WTO law.

As global regulation is evolving and increasing, political and democratic demands are growing too. Contemporary political events (eg the vote for withdrawal of the UK from the European Union, the election of President Trump, the support for Le Pen in the French presidential elections) reflect a growing popular nationalism, and rejection of elements of globalisation: does this mark a transformative shift?

Prof Reid pointed out that the legal order that regulates economic relations is not only legally binding but also highly sophisticated in that it provides for binding dispute resolution. The pursuit of trade liberalisation requires a reduction of barriers to trade, yet national environmental regulation has the capacity to impede the application of WTO law, constituting as it can, a barrier to trade.

Thus Professor Reid identified the challenge for the WTO as being two fold – first, there is a challenge of legitimacy, and second, there is a need to re-establish and strengthen the balance between global economic integration and domestic regulatory autonomy. These carry implications for both the fact that the WTO addresses the balance between economic and non-economic interests and the manner in which it does so.

On the first, Prof Reid notes that it is significant that it is the WTO which is, by virtue of its dispute settlement mechanism, the sole adjudicator of the balance to be drawn between application of the WTO rules, and their relationship with national regulation. That the WTO, an economic organisation, is the organisation which determines the balance between trade liberalisation and national environmental regulation raises a number of legitimacy, and of accountability related questions. Prof Reid noted that there has been significant criticism regarding decisions made by economic bodies generally and the WTO more specifically, however she went on to note that on further investigation, some of this criticism is unfounded. The WTO Dispute Settlement Body has an obligation to apply the WTO rules, it has no jurisdiction to go beyond this, and would face questions of legitimacy were it to do so.

Prof Reid then turned her attention to examining how the WTO solves this conflict between on the one hand the rules of the WTO and its covered agreements, and on the other hand national environmental regulation. Has the WTO the competence to do so? If so, how has it taken on the challenge? After all, it is important that the WTO approaches the subject in such a manner that it meets the test of legitimacy as it otherwise opens itself up to further challenges.

In this light, Prof Reid argued that the WTO can indeed meet the challenge of legitimacy provided it (1) reinforces the non-discrimination paradigm (ie national treatment principle and most-favoured nation clause) and (2) re-examines the way in which it addresses the balance between economic and non-economic interests.

Prof Reid explained that initially the underlying objective of the WTO was to secure welfare gain for everyone. Later, imbued by a neo-liberal account, free trade became a goal in itself rather than a tool to reach other objectives. Illustrative of this development is Article 2.2 of the TBT agreement that provides that national regulatory measures must not only be non-discriminatory but also necessary. This is no doubt a manifestation of the neo-liberal thinking as both discriminatory and non-discriminatory regulatory measures must be justified. As a result the State is less free because it must prove that the measures (eg emission standards) are necessary as part of the test and this, of course, opens the door to greater and more in-depth reviews of national measures. Prof Reid thus argued that the non-discrimination paradigm must be reinforced.

Prof Reid then scrutinised the way the WTO dispute settlement mechanism can potentially encroach on how non-economic issues are viewed and addressed in international economic law. Whilst it might be contended that States had agreed to such legally binding mechanism on a voluntary basis they nonetheless did not expect such a curtailment of their freedom to act. This no doubt affects the legitimacy of the mechanism all the more as an increasing number of individuals deem the protection of the environment to be of utmost importance and feel that the WTO is impinging on such an important matter. That being said, Prof Reid stressed that the WTO dispute settlement mechanism has so far, notably due to its restricted mandate, adopted a conciliatory approach. The mechanism, when examining general exceptions to the non-discrimination principle, has adopted a broad interpretation of the terms so as to facilitate the use of these clauses to cover environmental issues. After carefully examining the test enshrined in Article XX GATT that relates to general exceptions, Prof Reid concluded that the mechanism does not question the level of protection offered by such measures, but whether the measure is the least restrictive in terms of trade. This enables the mechanism to keep an objective evaluation of the measure even though it does claim that it is engaging in a ‘weighing and balancing’ exercise. As a result of the mechanism refusing to examine the state’s level of protection (which is in fact consistent with the trade liberalisation paradigm) it avoids the legitimacy question.

In conclusion Prof Reid reiterated that the evolution of the international legal order poses a significant challenge to the WTO. She however maintained that the WTO has the capacity to address such challenges: it must reinforce the non-discrimination paradigm and continue to resist the movement towards a subjective evaluation of State measures

In the discussion that followed, participants asked questions about eg the consistency of the case-law of the dispute settlement mechanism, the interrelationship between WTO rules and regional agreements, how non-government organisations can influence WTO decisions, and the definition and application of the concept of ‘human health’ as found in Article XX GATT.

Bristol Law School 2017 Round Up

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As 2017 comes to a close we want to share with you some of our highlights from the past year:

Back in January we launched our new Research Centres and groups.

In February, we helped alumnus Jeremiah Daliel’s launch his first book, inspired by his real life experiences.

Back in March, our Pro Bono team helped young entrepreneurs to open a new recording studio.

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Our pro bono team helping young entrepreneurs

Also in March we hosted a Distinguished Professorial Address with Professor Michael Dougan titled “The UK outwith the EU and the EU without the UK’”

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Professor Michael Dougan gives a Distinguished Professorial Address

In April, we moved into our new £55 million building  which is now home to the Bristol Law School and the Bristol Business School.

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The Bristol Business School, home to the Bristol Law School and Bristol Business School

We invited our alumni to be some of the first to visit the building at a networking event in May.

In May we also shared news of a successful year for the Bristol Law School and Bristol Business Pro Bono Business Advice Clinic.

One of our Bristol Law School alumni was elected Sheriff of the City and Corporation of London in July.

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Tim Hailes, Sheriff of the City and Corporation of London

Over the summer we shared news that UWE Bristol had a third rise in student satisfaction and that we moved three places up the Times Good University Guide.

Also over the summer, Dr Zainab Kahn visited Amman, Jordan to work with partnership institutions to engage international students in postgraduate roles here at UWE.

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Dr Zainab Kahn in Jordan

In October, a Bristol Law School student won Student of the Year at the Bristol Law Society Awards. The LiP Service team, made up of Bristol Law School, University of Law and University of Bristol students won team of the year.

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Winners at the Bristol Law Society Awards

In November, as part of national pro bono week, we shared a roundup of all the great work pro bono work we do at the Bristol Law School.

Also in November, Financial Crime expert, Professor Nic Ryder provided a commentary on the Paradise Papers.

To see more of our highlights from 2017 visit our blog. Roll on 2018!

Presentation of a Paper on Russia and International Law at a Symposium on Hybrid Warfare at the Swedish Defence University

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In the last few decades the concept of ‘hybrid warfare’ has gained prominence in international security studies. Although there is no agreed upon definition of hybrid warfare it can nonetheless be described as the simultaneous and synchronised use of different instruments of power – military, economic, information, civil, social, political, financial and legal – with the aim to destabilise an adversary. Historically, hybrid warfare was known as ‘asymmetric warfare’ and mainly carried out by non-State actors with weaker military forces who disregarded international legal norms, used terrorist tactics, were involved in organised criminal activities and conducted information warfare. Increasingly, States and military alliances such as NATO have adopted some of these multidimensional means of warfare in blended tactics. The security challenges arising from hybrid threats and wars are today high on the agenda, notably because no comprehensive approach explaining how hybrid wars and threats are to be handled has been advanced.

It was with this view that a symposium was organised by the Swedish Defence University (SEDU) in collaboration with the Centre for Conflict, Rule of Law and Society, Bournemouth University and the Center for Asymmetric Threat Studies at SEDU on 14-15 November 2017. Aimed at facilitating the production of new knowledge and the development of future cooperation the event gathered international practitioners and researchers discussing the contemporary challenges to the international security environment from a Swedish and international perspective. It was notable that participants from the USA, Sweden, Georgia, Estonia, Denmark, Finland, the UK, South Africa and Norway tried to address these challenges from a multidisciplinary research point of view.

A number of speakers at the Symposium focused on the use of hybrid warfare tactics by Russia. It is in this framework that Dr Noëlle Quénivet (Bristol Law School) presented a paper she had written in collaboration with Dr Sabine Hassler (Bristol Law School). This paper was in fact the further and logical development of a set of ideas that the two staff members of the Bristol Law School had advanced in a chapter for an edited collection on The Use of Force against Ukraine and International Law which is due to be published in April 2018. In this chapter Dr Hassler and Dr Quénivet argue that Russia was (and is) using nationality (understood in a wide sense of the term) as a political, economic, and cultural tool to justify expansionism in neighbouring States. Its use of nationality is commonly known in academic literature as ‘passportisation’.

This analysis, drawing on the experiences in the Baltics, Georgia, and Ukraine, have led Dr Hassler and Dr Quénivet to go a step further, examining whether passportisation is part of a wider policy and whether Russia is rewriting the post-1945 rules that are based on the sovereignty of States, the prohibition of the intervention in internal affairs, the prohibition of the threat of or the use of force, the principle of self-determination and the protection of human rights. Russia, so it seems, is using grey areas in international law to implement a policy whose legal implications are in breach of the key principles of the UN Charter relating to international peace and security. It is contended that the policies and tools (eg conferral of nationality, support for the right of self-determination, protection of nationals abroad, threshold of ‘armed attack’, etc) developed and used by Russia are not necessarily unlawful per se; they can indeed in some instances be justified under international law as they fall within its grey areas. That being said, the situations created as a result of this policy are often unlawful (eg recognition of a State that is part of the territory of another State, occupation and annexation, etc.).

Presentation - Stockholm

In this regard, it is particularly remarkable that in all its activities Russia is taking great care in providing legal justifications. Failing to be able to justify its actions, Russia simply denies its involvement. The key question is whether Russia is using the law and the grey legal areas to advance its own version of international law and thus contributes to delineating the norms of international law or whether it is incrementally testing the limits of international law with a view to modifying the post-1945 legal framework. Dr Hassler and Dr Quénivet argue that in fact Russia is not proposing a novel interpretation of international law; rather, it is testing to which extent some less established norms and practices in international law can be modified to suit its own purposes and interests. Here, Russia is acting much alike other States, trying to preserve its national security and territorial integrity. As a matter of fact this emphasis on State security and integrity reveals that Russia is keen on securing an old – based on military security – rather than a more contemporary – based on human and environmental security – interpretation of the post-1945 rules.

Amnesty International Expert Meeting on Brass Plate Companies and Illicit Weapons Trafficking

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Following Dr Mary Alice Young’s participation at the Amnesty International Expert Meeting on Brass Plate Companies and Illicit Weapons Trafficking in October, Dr Young’s suggestions have been included in a follow up report which will be presented to the newly re-established Committee on Arms Export Controls, with a view to presenting the work in an oral evidence session.

Dr Young’s recommendations include alternative methods to investigate, prosecute and stop the formation of brass-plate arms dealers who benefit from the UK’s relationship with financial secrecy jurisdictions.

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?”

Guest Talk: Adam Reuben – Climate Refugees: The Science, the People, the Jurisprudence and the Future

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In October 2017 Fores, an independent think tank dedicated to furthering entrepreneurship and sustainable development through liberal solutions to meet the challenges and possibilities brought on by globalisation and global warming, published a report entitled ‘Climate Refugees: The Science, the People, the Jurisprudence and the Future’. On 18 October, one of the authors of the report, Adam Reuben, a former LLM in International law student, came to UWE to present the key findings of the report as well as his latest research on the topic of climate refugees in the European context. The talk was organised by the International Law and Human Rights Unit of the Centre for Applied Legal Research.

The study examines the most important aspects of climate migration issues as comprehensively as possible, and strives to identify the significance and magnitude of possible climate migration flows. Adam started by explaining that there are mainly four triggers to climate migration: rapid-onset climate events, slow-onset climate events, global sea-level rise, and competition and conflict over natural resources.

Rapid-onset climate events include for example floods, hurricanes and earthquakes and lead to mostly temporary displacement of the population. Such events have a push and pull factor in the sense that the population is not only pushed out of a place but also pulled inside the zone as in some instances such climate events have in the long-term created favourable conditions for eg agriculture, tourism.

Slow-onset climate events occur over time and include droughts, degradation, loss of biodiversity, and problems with access to food and water. Here, migration can be both temporary and permanent and a plethora of causes of migration can be identified. In this regard two issues need to be addressed: food security and water scarcity. Slow-onset climate events have created volatility in the market and disruption of food systems; yet, the effects on agriculture affects different regions and different types of cultures in varied manner. As Adam pointed out even if the Paris Agreement is complied with the sub-Saharan area will see a loss of 40% in maze crops. With regard to water-related issues, Adam explained that 40% of the world population experiences water shortage for at least a month a year and that 25% of the population lives in countries affected by chronic or recurring shortage of fresh water. Although the right to water has been recognised as a human right and is included in the sustainable development goals as well as in some national constitutions, little progress has been made. Adam stressed that water is not only used for human needs but is also an asset as such.

Global sea-level rise is a further trigger for climate migration. It is estimated that during the 20th century the sea level has risen by 6 cm owing to climate change. Low-lying coastal zones that include 600 million people are the most vulnerable to this phenomenon. Such rise not only affects the life and livelihoods of individuals but also challenges maritime borders, thus creating potential territorial conflicts.

This led him to discuss competition and conflict over natural resources as another trigger for climate migration. For example, water scarcity increases national instability and food scarcity may cause conflicts over land. It is often argued that the conflicts in Darfur and in Syria are examples of climate conflicts but there is no agreed consensus in the literature as to whether climate change can be isolated as the sole cause of conflict. In other words climate change contributes to conflicts and to migration but it is problematic to identify it as the cause.

It is difficult to estimate the number of climate refugees. Estimations range from 150 million to 1 billion though it seems that a consensus has emerged that by 2050 there will be over 200 million climate refugees. Adam highlighted the fact that there are marked regional differences of disaster displacement and this is partially due to the fact that there are rapid- and slow-onset climate events. At this stage Adam emphasised the fact that there is some wrangling about legal terminology here, notably the distinction between environmental and climate change refugees. This is compounded by the fact that reference is made to climate change, natural disaster and man-made disaster. Further, whilst some individuals cross the borders and are thus refugees in the sense of the 1951 Geneva Convention others do not and are thus considered as internally displaced persons. Adam stressed that international law does not recognise the concept of climate refugees which are usually defined as

‘… those people who have been forced to leave their traditional habitat, temporarily or permanently, because of marked environmental disruption (natural and/or triggered by people) that jeopardised their existence and/or seriously affect the quality of their life.’

From an international law perspective climate refugees fall between two categories: those protected as refugees and those protected as economic migrants. In other words there is currently no legal framework to protect such individuals.

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Adam then sought to examine the relevant legal regimes, i.e. international environmental law, refugee law, migration law and human rights law. The UN Framework Convention on Climate Change Agreements rarely refer to climate migration (see e.g. COP 16, 18 and 21) and the Paris Agreement makes a vague reference to such migration. But is the UNFCCC the relevant forum to address the issue of climate migration? The UN High Commissioner for Refugees rejects the expansion of its mandate to consider climate migration. That being said it operates on the basis of ‘climate change hotspots’ to somehow fill the gap. So, by not isolating climate change as the sole cause of displacement, UNHCR is able to protect such individuals. Interestingly, Adam pointed out that the International Migration Office was at the forefront of the work on the protection of climate refugees having produced excellent studies on the subject-matter. Also the Nansen Initiative produced in 2015 an Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change. From a human rights perspective there appears to be some form of protection offered to climate refugees but mainly only because they fall within other categories such as refugees and displaced persons. Most importantly the principle of non-refoulement, the cornerstone of the 1951 Geneva Convention, has been read into human rights instruments via the prohibition of torture and inhuman treatment. At this juncture Adam explained how the jurisprudence of the European Court of Human Rights could be used to protect climate refugees, arguing that as the Convention is a ‘living instrument which […] must be interpreted in light of present day-conditions’ it could potentially provide an adequate legal framework for protection.

Last but not least Adam considered the issue of climate refugees in the European Union. He contended that climate refugees are not legally recognised by the EU and that it is not possible to interpret existing legislation so that it incorporates climate refugees. Various studies and papers refer to climate refugees but no clear strategy can be discerned as of now. Rather, an incoherent and piecemeal approach seems to be the preferred approach of the EU.

The discussion that ensued covered a wide range of themes. First, the issue of terminology was raised and especially why and whether terminology was of such importance. The concept of forced environmental migrant seemed to be accepted by the audience as probably most suitable to describe a variety of persons affected by climate change events. Second, the interaction of the various legal regimes and where the protection of climate refugees would sit best was discussed at length, especially in light of the doctrine of State responsibility that requires harm to be linked to a State or a State actor. Third and last the discussion veered towards the European Union’s approach towards climate refugees. It was notably pointed out that given that Member States had territories overseas that were liable to climate events the topic of climate refugees could become quickly an issue of concern for the EU.

 

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.

jade
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.