Theses - Law

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Open Access
Legal controls on lying public officials
Galilee, Imogen
Considering the harm that is caused by lying public officials, to what extent does the law address this harm, and how? To the extent that it does not, is a broader legal remedy possible, and what might it look like? This thesis first sets out the harm that is caused by officials who lie – specifically, damage to public trust, and the wrongful reallocation of power – and argues that such lying might only be justified if it can be said to serve another important state function. In Chapters 2 to 5, I discuss where and how official lying is controlled by different areas of law (defamation, misconduct in public office, ‘administration of justice’ offences including perjury and perverting the course of justice, and judicial review), how lies that do or do not attract legal consequences are distinguished from each other, and the extent to which this tracks with analysis in Chapter 1 of why official lying is harmful. It will be seen that it is far from the case that officials can lie with impunity. However, there is no law against a public official who tells a lie directly to the public with no consequential financial loss or gain and no individual reputational loss. In view of certain specific proposals for such a law, I therefore seek in Chapter 6 to draw lessons from the existing law as to what kinds of distinctions we would need for a dedicated offence against official lying, and ultimately whether such a law would be possible and/or desirable.
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Exploitation at Sea: Examining the Structural Failings of an International Legal Regime
Peterson, Darren
The sea has long been implicated in severe exploitation and human rights abuse. It was the site for the facilitation of slavery and the slave trade, while its exceptional nature was used as a justification for the continuation of systemic forms of labour exploitation such as impressment, crimping, and the criminalisation of desertion. At the turn of the twentieth century seafaring labour became the subject of specific regulation under the newly established International Labour Organization (‘ILO’). Since its inception sixty-eight conventions and recommendations related to the rights and labour conditions of seafarers have been adopted under the auspices of the ILO, far exceeding the international regulations adopted for any other industry. Yet exploitation against seafarers persists. The abandonment of seafarers within ports is a frequent occurrence, with seafarers being left without food, water, medicine, fuel, or the means to return to their families, sometimes for years at a time. Exploitation is perpetrated by labour market intermediaries and manning agents who engage in deceptive recruitment practices, charge illegal fees for employment within the industry, and increase the risk of debt bondage. During the COVID-19 pandemic, an estimated eight hundred thousand seafarers were trapped on board their vessels at the conclusion of their contracts, with many being denied the right to repatriation, access to emergency medical treatment, or being forced to continuing working without payment. Given this continued exploitation despite extensive and specific governance by a dedicated international regulatory regime, this thesis examines the structural failures within this international legal framework that contribute to, or facilitate, the exploitation of seafarers. It examines the development of the law over the course of the last century, paying particular attention to the ten maritime sessions of the International Labour Conference where these conventions and recommendations were adopted. It argues that the separation of seafaring as a subject for specific regulation within the ILO has allowed the rights of seafarers to be expressly balanced against the economic interests of shipowners and the importance of efficient global trade. It demonstrates how rights to equality of treatment and non-discrimination have been refused by States in order to construct a regulatory regime in which a seafarer’s state of nationality, and not the flag state in which they are employed, is determinative for many of the conditions of their labour. This has included through express exclusions of non-resident seafarers from the protections of certain core international human rights treaties, ultimately disadvantaging seafarers from the Global South. This has been underpinned by an express refusal by States to enshrine a right of access to judicial remedies within international law, adding to the barriers imposed upon seafarers in accessing courts and non-judicial remedies in order to enforce their rights and seek redress for exploitation.
Open Access
Rights and climate change mitigation - why the individual rights approach to climate change mitigation is not the right approach
Lindberg, Agnes Harriet
This dissertation examines the arguments of rights recently invoked in lawsuits addressing duties to mitigate greenhouse gas emissions. It asks whether these arguments correspond to how rights are typically understood in terms of philosophical ideas of rights. This question is not examined from a doctrinal but rather a philosophical lens: do the traditional philosophical ideas of rights extend to climate change mitigation? The dissertation analyses this question in the light of three philosophical theories of rights: (1) analytical theories of rights, (2) moral theories of rights, and (3) political theories of justice. The dissertation argues that duties to mitigate greenhouse gas emissions do not correspond, either conceptually or morally, to ideas of individual rights. An individual experiencing the detrimental effects of global warming does not hold a claim-right correlative to a duty to mitigate greenhouse gas emissions, and an individual’s fundamental interest in avoiding these detriments does not justify the imposition of this duty. Instead, both the abstract duty to mitigate climate change, and also the specific duties to mitigate greenhouse gas emissions, concern the distribution of benefits and burdens of modern society. Distributional justice within and between political communities is a matter on which people legitimately disagree. The dissertation concludes that arguments claiming that there is only one “right” answer to climate justice are, at best, mistaken and, at worst, authoritarian.
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'Blowing in the Wind?': Environmental Liability of Corporations for Atmospheric Damage in Chile
Leal Vasquez, Brigitte Nayisol
Chilean Law 19,300/1994—the General Law of the Environment—provides a statutory mechanism for holding polluting corporations liable for the damage that they cause to the environment. It works as an adjudicative and adversarial framework for finding liability and ordering remediation measures to redress environmental damage. In the last decade, citizens living and working in highly polluted areas have sued corporations owning power plants and mining establishments for causing atmospheric damage, being ordered to remediate it through emissions reductions. The literature on environmental liability in Chile has not provided yet a legal analysis on the justification, functioning, and critical problems of this model when it is used to tackle atmospheric damage. This dissertation aims to fill that gap. The thesis encompasses a positive and a negative claim. The positive claim posits that the ‘Chilean model’ of environmental liability is novel as it detaches from tort liability established in the Chilean Civil Code—the traditional legal route for recovering damages in Chile. The model would rather constitute a mixed liability regime sharing features of both tort liability and environmental policy. Then, the negative claim contends that the model may not achieve its policy goals as it faces four structural problems. First, the ‘adversarial system problem’ argues that the model relies on legal proceedings that are lengthy, delaying decisions on environmental liability and postponing remediation of atmospheric damage. Second, the ‘standing problem’ holds that the model features a rigid standing rule, limiting the capacity of potential plaintiffs to claim remediation before environmental courts. Third, the ‘causation problem’ holds that the model lacks sufficient resources and incentives for tackling informational and conceptual gaps in determining contributory causation of atmospheric damage by big polluters. Finally, the ‘remedy problem’ asserts that the remedial structure of the model does not lead to a mechanism for remediating atmospheric damage caused by multiple sources of industrial air pollution promptly. By exploring the legal history of environmental liability in Chile and undertaking some legal comparisons on the subject, this thesis aim to illuminate the frontiers and futures of environmental liability in Chile.
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Law’s Technicality and Rich Evaluative Significances: Why (English) Law Is Not a Deontic System
Ward, Daniel
The more abstract, theoretical reaches of private law scholarship are perennially afflicted by controversies over whether particular legal categorisations such as contractual obligation and duty of care genuinely ‘legally obligate’ (or whether breaches of such standards are ‘wrongs’). General jurisprudence, meanwhile, entertains an equally persistent debate over the nature of legal obligations – particularly over how such entities relate to morality and/or other aspects of the normative universe. Underpinning both discourses is an assumption that law is essentially a system of deontic (i.e. obligating/permitting) norms, plus deontic norm-modification norms. That is, it is thought that if one scrapes away the surface technicality of legal discourse, and setting aside also the emotional nuances of the sentiments people actually have towards legal categories, one can reconstruct the legal corpus as a set of propositions involving a small set of normative operators (obligation/permission, power/disability). These operators, in turn, are thought to be definable in terms of some psychologically thin (or perhaps entirely non-psychological) notion of a legal ‘ought’ or ‘may’ whose nature can be debated philosophically. I argue that this assumption is mistaken. It generates a picture at variance with the facts of legal and societal practices. It fails to appreciate the technicality of legal language, which (in England, at least) results in there being no overarching notion of ‘legal obligation’ and in it being impossible adequately to paraphrase statements involving terms such as contractual obligation, crime and tort with ‘ought’-statements. It simultaneously fails to compute with law-influenced attitudes being richly emotional and socially embedded, involving complex blends of shame, anger etc. The better view is that law (or, again, English law) is not a deontic but rather a status-ascribing and sentiment-coordinating system. In developing this contention, I draw on social and linguistic philosophy, traditional legal materials (case-law, legislation) and historical and sociological evidence.
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'A Reasonably Well Organized Modern State': Investment Treaty Arbitration and the Reformation of Economic Sovereignty in Customary International Law
Hailes, Oliver
The international arbitration of investment treaty disputes between foreign nationals and their host States is commonly supposed to restrict the exercise of sovereignty. Yet several expressions of territorial jurisdiction have been identified by investment tribunals as presumptive rights of States, which formally derive from custom and are accordingly considered in their interpretation and application of treaty standards. Arbitral reasoning has thereby modernised the general international law on what a State can do in the economy. And what it cannot. This thesis highlights a positive contribution of investment treaty arbitration by showing how key cases and lines of authority have reformed the limits and content of three rights of States in the economy: expropriation, taxation, and regulation. It is organised in two parts and nine chapters. Part I lays a methodological foundation for approaching the notion of economic sovereignty as a bundle of rights under customary international law, which are routinely applied and thereby developed in investment treaty arbitration. Part II examines how the limits and content of three rights have been reformed through the arbitral application of old legal forms to modern economic measures, underpinned by several past projects in the international legal field and a general distinction between governmental authority and commercial activities. These core rights may be consensually limited by any contractual promise but must be integrated in investment treaty interpretation. For any public purpose, each State enjoys the presumptive rights: to take the property of foreign nationals with an offer of compensation at fair market value (expropriation); to make a compulsory exaction of money by law, whether or not for the predominant purpose of raising revenue but without any reciprocal benefit to the payer (taxation); and to adopt, enforce, or amend a measure creating domestic rights and obligations, subject to a circumstantial standard of reasonableness (regulation).
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Towards an Understanding of the Distinction Between Limitations and Exceptions in International Copyright Law
Parish, James
The topic of copyright limitations and exceptions attracts extensive jurisprudence and academic commentary. However, the terms ‘limitations’ and ‘exceptions’ remain undefined in international copyright law. The World Intellectual Property Organization (WIPO) has offered three conflicting definitions for these terms. First, the 1980 WIPO Glossary suggests the terms are synonymous. Second, a 1999 WIPO Workshop describes ‘limitations’ as permitted-but-paid uses of a protected work, and ‘exceptions’ are free uses. Third, a 2003 WIPO Study says ‘limitations’ exclude certain subject matter from copyright protection, and ‘exceptions’ provide defendants with immunity from copyright infringement. The diversity of definitions reduces legal clarity. Amid this confusion, a former Director and Assistant Director General of the Copyright Division at WIPO suggests it is best for commentators to “avoid” using the terms altogether when describing international copyright unless they enter a “debate about the categorization, justification and ideological background of exceptions and limitations”. Article 13 TRIPS of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement set a major international test for permissible copyright limitations and exceptions. The drafting history for this provision suggests a subtly different set of definitions so far overlooked by WIPO. As early as 1958, the US Copyright Office recognised that legislatures could exclude permitted acts from the scope of copyright statutes either by narrowly defining the scope of exclusive rights using a ‘limitation’ (such as restricting the exclusive right of communication to ‘the public’, indicating that it is always lawful to communicate to private entities); or the legislature broadly defines exclusive rights (a general communication right) and subsequently provides an ‘exception’ that excludes a potential group of users from liability (perhaps a carve-out for private performances). The US Copyright Office saw two differences between limitations and exceptions: i) a formal difference and ii) a potential normative difference. Copyright legal theorists know the formal difference between limitations and exceptions, but most agree that the US Copyright Office distinctions do not matter in practice. This leads people to think that limitations and exceptions are synonymous terms. However, almost 250 years ago, Jeremy Bentham explored the philosophical and normative differences between limitations and exceptions. Copyright legal theorists have so far overlooked the contributions of Bentham and his progeny. Bentham’s theory suggests there is a right time for a legislature to use either a limitation or exception. Legislatures should use limitations to prevent the positive scope of a prohibition from exceeding its justificatory basis. Examples of copyright limitations include the idea/expression dichotomy and the permitted act of criticism. In contrast, a legislature should use exceptions to accommodate competing policies that trump copyright, such as the US bars and grills exceptions to public performance rights. Attending to this framework can enrich many aspects of copyright practice, including i) the improved readability of copyright statutes, ii) an improved legal theory of the relationship between copyright and contract law, and iii) a radical reinterpretation of Article 13 TRIPS that may provide more flexibility in enacting national limitations to copyright law.
Controlled Access
Transboundary Self-Determination: Remedying the Effects of International Borders
Mukhayer, Harum
This thesis advances a new category of self-determination: transboundary self-determination. This thesis posits that transboundary self-determination may: (1) Remedy the disruptive effects of international borders on communities between two or more States separated by an international frontier, and (2) To promote a truly international peace and security in which the rights of communities between borders are prevented from falling between the cracks of the international legal framework. The original contribution this thesis makes is the enunciation of transboundary self-determination as a remedial response to the gap in international law governing the cross-border rights of communities between two or more States. As such, it is an in-between category for communities between borders who are neither internal to the State nor external to it. I suggest that this remedial right is necessary to ensure the operative effects of uti possidetis as a “photograph” of the territorial situation; a photograph that captures more than the geometric lines of frontiers and reflects the lived experience of borderlands between two or more States. Taken together the three expressions, or trichotomy of self-determination – internal, external and transboundary – ensure that no one is left behind in the expression of self-determination. It caters to the rights of transboundary peoples, broadly defined as peoples whose self is necessarily determined through cross-border cultural, spiritual/ religious, livelihood and family ties. Had it not been for borders or territorial changes these transboundary rights would have flowed freely without territorial disruption. Rooted in the jus cogens character of the right and principle of self-determination, transboundary self-determination derives its legal and normative force from the right of all peoples to ‘freely determine their political status and freely pursue their economic, social and cultural development’ enshrined in the UN Charter. Through the eight-cases presented in Chapter 3, the thesis presents examples of defacto and dejure transboundary rights from the Irish Border, Abyei Area, Kashmir, Kurdistan, Chagos Islands, Red Sea Islands, Sami Laplands and North America. These findings suggest that while the enunciation of transboundary self-determination as a unique category is novel, the rights it encapsulates are established and suggest a rule that has long been in circulation only to find a complete expression now, in this thesis.
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The Failed Internalisation of the European Convention on Human Rights in Russia: The Gap Between Values and Norms, and the Contested Meaning of Dignity
Izvorova, Lora
Despite the shortcomings of Russia’s legal and political systems, in 1996 the state was offered membership of the Council of Europe (CoE) based on a rhetorical commitment to the liberal democratic values of the organisation. Ratification of the European Convention on Human Rights (ECHR) and dialogue with Strasbourg promised to facilitate Russia’s transformation into a liberal democratic state founded on respect for human rights and the rule of law. Alas, this optimistic vision did not materialise. Until its expulsion from the CoE in 2022, Russia was one of the Member States with the worst compliance with the ECHR. Furthermore, from 2010 Russia began asserting a right to disagree with the European Court of Human Rights (ECtHR) on the correct interpretation of Convention provisions if this was necessary to protect the values of the Russian Constitution. In this thesis, I examine a hitherto unexplored explanation for Russia’s failure to become a good complier with the ECHR. I argue that the internalisation of the ECHR in Russia was obstructed by the conceptual contestation of the Convention’s foundational values. In Russia and in the USSR, there was always a competing set of values through which the state interpreted its human rights obligations. These pre-existing values have shaped the meanings of dignity, liberty, equality, and rule of law in the state. Thus, although Russia incorporated its ECHR obligations in domestic law and learnt to use the language of ECHR values, it never accepted the liberal democratic meanings of these values in ECtHR jurisprudence. This plagued the dialogue between Russia and Strasbourg with mutual hostility and lack of understanding, thereby delimiting the persuasive authority of ECtHR judgments. The implications of the conceptual contestation of ECHR values on the internalisation of the ECHR in Russia will be examined in-depth by focusing on one particular value – dignity. I will show that the conception of inherent human dignity underpinning Strasbourg jurisprudence is not the meaning of dignity informing Russia’s interpretations of ECHR provisions. Instead, the dignity of the individual is perceived as a status acquired through conduct that upholds the pre-existing values which legitimise state authority. This home-grown conception of human dignity is closely linked to a view of the state as a dignified entity that embodies these values – that is, to state dignity.
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The Principles of Territoriality - A Study in Public and Private International Law, Intellectual Property, and International Arbitration
Rivoire, Maxence
The principle of territoriality is often invoked as a self-evident, universally acknowledged concept in various areas of the law. Yet, there is not one, but several principles of territoriality. Not only does territoriality have different meanings in different disciplines, but it is sometimes understood differently within each discipline as well. This thesis aims to lift the uncertainty behind territoriality by clarifying its meanings and implications in four disciplines: public international law, private international law, intellectual property (IP), and international arbitration. Through a comparative and transnational lens, it examines the historical and contemporary relevance of each understanding of territoriality, while revealing connections between these understandings where necessary. This thesis then builds upon these foundations to examine the situation where different conceptions of territoriality meet and intersect: the commercial arbitration of cross-border disputes involving IP. It notably compares the question of the arbitrability of IP with the question of exclusive jurisdiction (or “jurisdictional territoriality”) in international IP litigation. It also considers the applicable law to arbitrability and to the merits of the case in arbitrations involving IP, insofar as these questions are greatly influenced by one’s understanding of territoriality.
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Inconsistencies in Law
Gueiros Dias, Daniela
Inconsistencies have been the object of study of numerous analytical legal philosophers like H. L. A. Hart, Hans Kelsen, Alf Ross, Norberto Bobbio, Lon Fuller, Ronald Dworkin, Carlos Alchourrón, Eugenio Bulygin, and Pierluigi Chiassoni. Although these authors hold differing views on inconsistencies, I argue that they have all failed to arrive at a sound taxonomy of the different types of inconsistencies that can occur in the law. I claim that inconsistencies can be classified into two types, namely, contradictions and conflicts. I also contend that inconsistencies are not to be confused with improper inconsistencies, which do not concern instances of logical incompatibility between norms, but rather of functional incompatibility between them, which means that the application of one norm undermines the achievement of the goals or purposes pursued by another norm. The central claim of this dissertation is that a failure to differentiate between contradictions and conflicts as two types of inconsistencies as well as a failure to differentiate between inconsistencies and improper inconsistencies has often resulted in mistaken views about how inconsistencies affect the law’s ability to provide guidance and of how problems arising from inconsistencies in the law can be remedied. I examine the *Validity Thesis* (inconsistent norms can be simultaneously valid in a single legal system), the *Guidance Thesis* (inconsistencies undermine law’s ability to offer guidance to individuals’ conduct by rendering the law indeterminate), the *Interpretation-Creation Thesis* (inconsistencies are created by interpretation) and the *Modification of the Law Thesis* (the resolution of inconsistencies entails a modification of the legal system) with the purpose of showing how they are to be understood or, more precisely, what interpretation is to be given to them to make them correct.
Open Access
The Moral Foundations of Fair Labelling
Moshikaro, Khomotso
This thesis examines the principle of fair labelling in criminal law. It argues that fair labelling is a principle of justice concerned with the just allocation of blame in offence (i) naming (ii) differentiation, and (iii) persistence or duration. The first two chapters examine the concept of a criminal label and its relationship to punishment. I argue here that criminal labelling is not simply concerned with offence description and categorisation, but also the allocation of a status that alters the rights and duties of an offender. Categorising an offender as having committed a certain offence which is at odds with the blameworthiness they actually deserve is a site of certain kind of injustice - an ontic injustice. This ontic injustice creates a mismatch between the offender’s entitlements (as per critical morality) and the legal categories and duties imposed on them when allocating blame in punishment. I argue that fair labelling is concerned with this specific kind of mismatch when the criminal law allocates blame in offence description and categorisation. I then argue that convictions (best understood as punitive criminal labels) are the paradigmatic case of criminal labelling and so the paradigm case for analysing fair labelling concerns. I then connect convictions to the communicative functions of the criminal law in punishment and explain why criminal conduct specifically concerns the public and community at large. In the third chapter I defend and justify criminal labelling – especially the important part criminal labels play in punishment as a communal practice concerned with moral education. Here I stress the often-neglected role that civil society plays in criminal punishment. In the fourth chapter, I then analyse the role that fair labelling plays in the allocation of blame when concerned with issues of culpability. I argue that different mens rea requirements ought to be reflected in different offences as a point of departure, taking account of the importance of the interest entailed. This does not mean criminal offences cannot blur these lines, but that such blurring will require justification by appealing to the importance of the interest involved. I also analyse the rule of law implication of properly allocating blame and argue that fair labelling is compatible with, and mutually supported by, the rule of law. The last two substantive chapters of the thesis are concerned with the persistence of an offence after offenders have served their sentence. I argue here that an offence can persist in a manner that incorrectly treats an offender as an irredeemable moral inferior and so miscategorises them as a second-class citizen. I then argue that the persistence of an offence may also fail to allow an offender to live down a conviction in a manner that creates a mismatch between their label understood as a status and their actual moral entitlements according to critical morality.
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Equitable Access to Assisted Reproduction: Designing regulation for efficacious realisation of the right to reproductive health
Dadiya, Jinal
This thesis examines issues of distributive justice in the regulation of assisted reproductive technologies (ARTs). Focusing on in-vitro fertilisation and gamete cryopreservation, it locates an entitlement to access ARTs within the international human right to the highest attainable standard of health under Article 12 of the International Covenant of Economic, Social, and Cultural Rights. To establish this, it develops a normative account of the right to reproductive health under Article 12, grounded in peoples’ lived experiences of involuntary childlessness and its interconnectedness with other human rights safeguards, including that to pursue genetic parenthood. I argue that the right to health raises aspirational and procedural obligations upon states to provide ARTs, as well as an immediate obligation to ensure that where ARTs are provided, access to them is equitable. The meaning and scope of equitable ART access are examined and critiqued. The right to health raises obligations for states as well as non-state organisations, thereby necessitating careful regulatory design. The second leg of this thesis compares representative regulatory frameworks to make contextually adaptable recommendations on how ART regulation should be designed, for efficacious realisation of the right to health. Methodologically, the thesis goes beyond an analysis of doctrine and case law, to examine regulatory material and policy positions. Jurisdictions considered are Ontario (Canada), England (UK), Maharashtra (India), and Singapore. Drawing on a nuanced analyses of regulatory traditions and techniques, I demonstrate that states can, and do, meet their ART provision functions is by licensing (or delegating) them out to private fertility clinics. Where ARTs can only be provided by licensed clinics, access to them should be equitable. Recommendations are made for designing licensing conditions that further the right to health. It is further claimed that right to health does not necessitate public ART funding but justifies it. I show that a right to health approach addresses contemporary scepticism about ART funding. Based on an analysis ART funding regulation in the representative jurisdictions, I identify funding policies that are inconsistent with the right to health, and recommend practices that further the right. In doing so, I respond to concerns levelled against regulating ART provision, including those of undue medicalisation, limited resource prioritisation, and indistinguishability of ARTs from other life projects.
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A Legal History of Narrowing Ambitions: The Rise of Human Rights in Inter-American Regional Law and Organisation
Quintana, Francisco
This thesis examines the rise of human rights in inter-American regional law and organisation. It contends that, first, despite their present centrality, inter-American human rights were originally not a priority of American states. Rather, the codification and institutionalisation of inter-American human rights that took place between 1945 and 1969 were part of broader struggles over the legal ordering of regional geopolitical and economic relations. These forgotten struggles involved contested visions of sovereignty, collective security, and economic cooperation, articulated in the language of international law. Second, showing the constitutive power of international law, this thesis argues that shifts in modes of international legal thought and action were conditions of possibility for both the regional codification and institutionalisation of human rights, as well as for their rise to centrality starting in the 1970s. Overall, this thesis challenges the necessity of inter-American human rights as we know them today, opening up space for critique and change. At the same time, this history underscores constraints, showing that human rights rose while projects that entailed a deeper institutional change in inter-American regionalism were foreclosed in and through international law.
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Development of powers enabling exclusion of improperly obtained evidence in civil proceedings in England and Wales, Aotearoa New Zealand and Australia
Allen-Franks, Alexandra
The exclusion of improperly obtained evidence is often discussed in relation to criminal proceedings but not civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not usually present. This thesis takes as its starting points (a) that it is sometimes assumed or claimed that there is no ability to exclude improperly obtained evidence in civil proceedings and (b) that some commentators consider that there should be no ability to exclude such evidence in civil proceedings. Contrary to (b), this thesis argues that recognition of powers enabling exclusion in civil proceedings is justifiable with reference to a version of the integrity principle (combined with the protective principle, where it applies). Contrary to (a), this thesis demonstrates that the jurisdictions under discussion (England and Wales, Aotearoa New Zealand and Australia) have recognised and/or developed powers enabling the exclusion of improperly obtained evidence in civil proceedings. This thesis argues that (to greater or lesser extents depending on the jurisdiction), recognition or development of the ability to exclude has occurred because of crossover from criminal procedure, ideas of abuse of process that relate to inherent power of the court (and can be explained with reference to an integrity principle), commitments to human rights and associated discourse. This thesis concludes with a proposal for further development of the jurisdiction-specific powers enabling exclusion. In summary, the proposal involves structuring the power to exclude by adopting a presumption of non-admission for evidence which has been obtained unlawfully and suggesting factors that should be taken into account when considering whether the presumption has been rebutted.
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A Care Ethical Theory of Political Obligation
Chadha Sridhar, Ira
The ethics of care – an approach in moral philosophy with feminist roots – understands care not just as a social phenomenon (as a type of action, relationship, or practice), but also as a crucial moral value. This thesis draws on the ethics of care to explore the question of political obligation: when, or under what conditions, do we owe a moral obligation to obey the law? The thesis has four chapters. The first chapter challenges the notion that there is a general, content-independent, moral obligation to obey the law by showing that our obligations to obey the law are content-sensitive and particular: they exist only in the case of some legal directives, and not others. The rest of the thesis makes significant progress in elucidating the conditions under which these obligations are indeed present. The core argument of the thesis is that we have moral obligations to obey the law whenever the law’s demands are supported by our underlying responsibilities of care. To lay the ground for this conclusion, the second chapter offers a discussion of the concept of care as a thick ethical concept by elucidating the descriptive and evaluative dimensions of the concept. This sets the foundation for the third chapter which analyses the scope, grounds, and content of our moral duties to care for one another. In the fourth and final chapter, these findings are applied to the philosophical discussion around the obligation to obey the law to develop a care ethical response to the problem of political obligation. The argument that emerges is that we are morally obligated to obey legal directives of our state to the extent that is necessary for the effective discharge of our duties to care for co-citizens. It is the author’s hope that this thesis will initiate further dialogue between care ethics and jurisprudence, lend clarity to some of the core tenets of the care ethical approach, and help demystify the debate around the moral obligation to obey the law.
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Fragmentation in International Financial Regulation: Rethinking Financial Regulation for a Multipolar World
Schilling De Carvalho, Pedro; Schilling De Carvalho, Pedro [0000-0001-7536-2661]
International standard-setting bodies emerged as the central response to the intensification of cross-border activities. However, shortcomings in their design, the growing fragmentation of markets, and contextual changes – such as the US’ hostility towards multilateralism, the impacts of Brexit, the increasing influence of countries such as China, and nascent markets such as Fintech and Sustainable Finance – point to transformations in international financial regulation. As network governance faces greater constraints, it is fundamental to identify additional and complementary pathways for facilitating cross-border coordination and cooperation in contentious environments; for managing fragmentation and divergence. This thesis builds on the work on market fragmentation produced by the FSB, IOSCO, and the IMF to understand how deference and comparability-based approaches can facilitate global coordination and cooperation in financial markets outside international standard-setting bodies. Moreover, it analyses how deference and comparability-based approaches can impact the governance of international financial regulation and the interface between the domestic and global levels, especially in instances of market fragmentation and regulatory divergence. The thesis starts by examining the tools singled out by the FSB and IOSCO as key for coding more flexibility into the international financial architecture: equivalence and comparability-based systems. It identifies what equivalence and comparability-based assessments demand to be carried out, their shortcomings, and the interplay between comparability-based systems and the international financial architecture. The discussion then moves into how new regulatory networks – whose mandates are not focused on the creation and dissemination of international standards, but rather on capacity-building and knowledge exchange – have emerged in nascent markets, with case studies based on the Financial Conduct Authority-led Global Financial Innovation Network and the Banque de France and De Nederlandsche Bank-led Network for Greening the Financial System. Based on the idea of sequencing, the thesis analyses the use of these new structures as additional pathways for financial regulation. The examination then goes back to the FSB and IOSCO toolkit to consider the role of bilateral agreements, many of which have been deployed in such nascent markets. Lastly, the role of assessment regimes (such as the RCAP, FSAP, ROSCs, and peer reviews) in managing divergence and enabling a more flexible layer in the international financial architecture – centred around deference and comparability – is discussed.
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The Justification and Limits of Liberty of Conscience
Baldwin, Guy; Baldwin, Guy [0000-0003-2765-4437]
According to Thomas Jefferson, the ‘constitutional freedom of religion’ is ‘the most inalienable and sacred of all human rights’. But the potentially expansive scope of religious convictions risks making the exercise of that human right controversial. That is because the right is usually taken to offer protection not merely to the holding of particular beliefs, but also to their exercise or manifestation. Such exercise or manifestation may be inconsistent with laws enacted to advance the public interest, or to protect the rights of others. That raises a dilemma: should legal protection for this right be allowed to trump other laws, even if they are in the public interest or seek to protect the rights of others? The project of the thesis is to explore the dilemma of the justification and limits of liberty of conscience (a term that encompasses, but is not limited to, freedom of religion). In this thesis, I defend the protection of liberty of conscience as against a state’s laws (that is, what are sometimes called ‘exemptions’). Drawing on the ideas of John Rawls – in particular, the concepts of moral personality and the basic liberties – as well as the work of other theorists, I suggest that the right to liberty of conscience is based on recognition respect for people as moral persons who have the capacity for a conception of the good and for a sense of justice. Protection of liberty of conscience is important for the exercise and development of both of these moral powers. Moreover, legal officials, like anyone else, owe duties of respect to the population that should entail respect for their liberty of conscience, and accordingly this explains why government should accommodate this immunity by granting exemptions from the law when needed. Notwithstanding the respect which is owed, I suggest that the right to liberty of conscience is only one basic liberty among several of equal status. That equality of status results from their similar derivation from the Rawlsian moral powers of a capacity for a conception of the good and for a sense of justice. Accordingly, liberty of conscience is not absolute. Drawing on Rawls, I identify two bases for the defeat of a claim to liberty of conscience: that the exercise of liberty of conscience is incompatible with the basic liberty or liberties of others, in circumstances where the other basic liberty or liberties should be prioritized (compatibility), or that limitation of the exercise of liberty of conscience is necessary in the common interest (necessity). In contrast, ideas of neutrality and dignity, employed by some theorists and courts to assess claims of liberty of conscience, are not relied upon in this thesis. I then apply the theoretical work undertaken to two case studies involving the limits of claims to liberty of conscience. I first address the theoretical basis of rights to integrity of the person and non-discrimination that are relevant to the case studies, before considering the case studies, which focus on the law of the UK and US. One case study concerns the coronavirus pandemic and objections on the basis of human rights and constitutional law against the enforcement of temporary attendance restrictions on places of worship. The other case study concerns discrimination towards same-sex couples on the basis of religious belief, in contravention of non-discrimination laws. The framework suggests that the claims to liberty of conscience in these case studies should generally fail due to the rights of others and/or the common interest; judicial decisions suggesting otherwise fail to reflect the moral position.
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Self-Judgment in International Law
Eichberger, Fabian
States have long claimed the power to ‘self-judge’ the interpretation and application of norms of international law that relate to particularly sensitive issues, such as national security. However, allowing for legally binding unilateral decision-making creates the risk of abuse by states and is thus denounced by most international lawyers. Increasing arguments of self-judgment in practice disclose a need to conceptualise the phenomenon and its limits coherently. The only way to do so is by studying the evolution and functions of self-judgment, as well as the tensions that underpin it. Against the backdrop of its intellectual history, this thesis conceptualises self-judgment as the authoritative application of international legal norms. It uncovers self-judgment as the site of persistent contestation, caught between judicialisation and pushback. Based on an extensive study of self-judgment in treaty practice and a cross-institutional analysis of the case law of international judicial bodies, the thesis unravels this process of contestation in four stages. First, in line with evolving conceptions of sovereignty throughout the 20th century international judicial bodies were instrumental in articulating a presumption against self-judgment. Following this, states shifted to ever more explicit language in a second stage, aiming to safeguard their self-judgment authority in legal instruments. Third, international judicial bodies have been relying on ‘good faith review’ as a potent tool to limit self-judgment by ‘judicialising’ it. Fourth, an emerging trend of reinforced self-judgment in treaty-making reveals how some states have resisted the judicialisation process, insisting on their right to authoritatively determine how the law applies in certain cases. In addition to uncovering this dialectic of self-judgment, the thesis also analyses the key factors in this process of contestation. It reveals the risks that self-judgment provisions can pose by facilitating abuse by states and threatening the normativity of treaty frameworks and considers the value of good faith review to manage those risks. At the same time, it argues that international judicial bodies must apply good faith review deferentially in ways that allow self-judgment provisions to fulfil their functions. Otherwise, practices such as reinforced self-judgment, an effective tool to roll back judicialisation, may continue to proliferate.
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Figments of Fragmentation in International Trade Law: Examining the Systemic Interaction between WTO Law and Regional Trade Agreements
Delev, Christian
The growing network of Regional Trade Agreements (RTAs) concluded between States has often been seen as a threat or policy alternative to the multilateral World Trade Organization (WTO) system. This dissertation re-evaluates this assumption by examining the interaction between WTO law and the RTA network. Focusing on the role of norms, institutions, and legal processes, it shows how this interaction has led to the development of international trade law into a legal system of international law. The argument is developed in five parts. First, the dissertation explores the concept of a ‘legal system’ and addresses how the continued interaction between WTO law and RTAs is formative of international trade law as a legal system of international law. Second, it is argued that rights and obligations under the WTO Agreement cannot be modified *inter se* based on Article 41 Vienna Convention on the Law of Treaties. As such, Members may only lawfully conclude *inter se* treaties which are compatible with existing WTO norms, fall within the scope of an exception, or are authorised through a waiver. Third, it is shown that RTA exceptions found in WTO covered agreements serve a public ordering function by defining the range of permissible RTA formations which could be established. At the same time, the conditions found in these provisions operate as incomplete bargains by setting out hermeneutically ambiguous disciplines that have not been clarified through treaty interpretation due to the reluctance of WTO Members to interpret them. Fourth, it explains how the expansion of international trade law is in part facilitated through norm dispersal processes – where norms found in one treaty are subsequently incorporated into another. However, these processes do not necessarily ensure the consistent interpretation and application of norms across international trade law, as this would depend on whether there are relevant differences between the norm-sharing treaties and the adopted method of norm incorporation. Finally, it is suggested that the WTO Appellate Body and panels may rely on the good faith obligation under Articles 3.7 and 3.10 DSU and where ‘actions’ brought by Members are not ‘fruitful’ under Article 3.7 DSU to refuse to exercise their jurisdiction where there is jurisdictional overlap. In turn, RTA tribunals may generally rely on both their express and inherent powers to refuse to exercise jurisdiction, particularly the principles of *res judicata* and *lis pendens*.

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