Theses - 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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    Law and the Paranormal: A Critical Perspective on Legal Rationality
    Sagar, Andrew
    This thesis develops a genealogy tracing how law has constructed witchcraft and related ‘paranormal’ practices throughout English legal history. It shows how early modern witchcraft laws evolved into modern fraud and consumer protection laws regulating mediumship, astrology, and fortune-telling. It argues that this development provides a case-study reflecting the emergence of several elements of the modern legal system. These include its conceptions of private property, contract, and the legal subject, but also, probabilistic causation and the juridical valorisation of natural-scientific empiricism. Linking this evolution to the emergence of capitalism, the thesis builds a unique theoretical framework drawing inspiration from critical realism, systems theory, and Marxian-inspired legal approaches, using its genealogy to offer a novel lens on law’s constitutive role within capitalist social relations. Accordingly, it posits that modern law expresses, and is bounded by, a rationality that struggles to reify certain concepts and practices, particularly paranormal practices, because of its capitalistic axioms.
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    Birthing the Eco: Towards a West African Law on Economic and Monetary Union
    Okwor, Kenneth; Okwor, Kenneth [0000-0001-9692-9305]
    This study diagnoses the reasons for the failure to achieve economic and monetary union (EMU) in the Economic Community of West African States. Economists and political scientists have proffered answers to this ‘why’ question from the prisms of their respective disciplines. They argue that the macroeconomic structures and conditions of member states, and the power dynamics in West Africa, make an EMU a fundamentally misconceived project that is bound to fail in the absence of sustained macroeconomic convergence. Since an EMU fundamentally rests on three mutually reinforcing pillars: economics, politics, and law, this study complements the literature by venturing a legal and institutional view on why the EMU has failed. In doing so, the study defines the ‘Ecozone’ as the domain for the EMU and develops the corpus of Ecozone law by synthesising the various elements comprising that law and its institutional architecture into a systematic framework for analysis. The analysis demonstrates clearly that Ecozone law is a collection of loosely-formulated and unenforceable general statements of union law, lacking the essential legal and institutional qualities necessary to make it a functional legal system both in theory and in practice. The study identifies and analyses ten issues – both *de jure* and *de facto* – which undermine the effectiveness of Ecozone law and its ability to support the establishment of an EMU. The analysis concludes that the Ecozone lacks an enabling legal environment for EMU. This is a key explanatory factor in the failure of the Ecozone as efforts to achieve sustained macroeconomic convergence, or to make EMU-related political commitments credible, have been undermined by the absence of an enabling and enforceable legal and institutional framework. In closing, the study recommends the reform of Ecozone law along a path that ensures constitutional and institutional coherence. It further recommends the restructuring of the Ecozone into a digital currency area, with the Eco as digital public money circulating in parallel to national currencies. This will compel macroeconomic convergence in the Ecozone consistent with the endogeneity thesis of optimum currency areas. The main contributions of this study are threefold. First, it synthesises the various elements that comprise Ecozone law into a coherent framework. This is novel because literature on EMU law in West Africa is sparse and the few strands of literature that exist have generally treated its various elements in siloes, without an in-depth exploration of the linkages and conflicts among them. Secondly, in expounding the corpus of Ecozone law, using the European Union’s law on EMU as primary comparator, this study has identified and analysed the weaknesses in the legal and institutional framework of the Ecozone so that reform efforts may be targeted and precise. For completeness, the study has suggested reforms that leverage on the advancements in financial technology. Third, the study contributes to the completion of the scholarly investigation into the reasons for the present failure of the Ecozone by providing the missing legal and institutional perspective to complement the economic and political views on the subject. Undergirding these three contributions is the fact that this study joins the emerging literature on EMUs in Africa and is therefore a useful addition to the body of existing knowledge on EMUs.
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    The Evolution of Hedge Fund Activism: From Corporate Raiders to Sustainability Crusaders?
    Christie, Anna
    The prevailing rhetoric associated with hedge fund activism is almost universally negative. This thesis provides new evidence of activist hedge fund behavior that contradicts this dominant narrative. The principal idea underpinning the thesis is that the conventional picture of hedge fund activism requires updating to account for two key recent phenomena: activist board representation and environmental, social, and governance (“ESG”) activism. The thesis makes at least four important contributions to academic and policy debates on hedge fund activism. First, through analyzing original hand-collected data on activist hedge fund campaigns, it demonstrates that a relatively new form of activism – activist board representation – tends to involve a longer-term approach to value creation through strategic and operational changes, rather than the short term financial engineering that activist hedge funds are commonly criticized for engaging in. Second, it builds upon the study of activist board representation campaigns to argue that activist hedge funds may be well positioned to play a unique role in ESG activism by nominating specialist climate directors to corporate boards. Third, it outlines how the phenomenon of activist board representation exposes the deficiencies of the independent monitoring board and provides suggestions for potential corporate governance improvements. Finally, it theorizes the incentives behind ESG hedge fund activism, thus providing early insights into this rapidly evolving practice. The thesis is structured as follows: Part I (Chapters 1 and 2) situates hedge fund activism and the role of the board in traditional and contemporary corporate governance debates. Chapter 1 examines the intellectual foundations underpinning the monitoring board as a response to the shareholder-manager agency problem and challenges its continued dominance in light of pressing societal challenges facing corporations. Chapter 2 critiques the narrative of short-termism that is prevalent in politics, the media, and corporate practice, which can obscure learning from the campaigns of activist hedge funds. Part II (Chapters 3 and 4) examines activist hedge fund board representation campaigns. Chapter 3 introduces this new form of hedge fund activism and presents a theory and hypotheses on the potential value associated with this type of activism. Chapter 4 tests the hypotheses presented in the preceding chapter through an empirical study analyzing activist board representation campaigns at S&P 500 companies since 2010. Part III (Chapters 5 to 7) explores ESG activism. Chapter 5 develops a new account of sustainable capitalism using the building blocks of agency theory. It highlights the major shift to passive index investing and ESG investing and analyzes the monitoring shortfall on the part of global asset managers. Chapter 6 discusses ESG hedge fund activism and – building on the theory and the empirical study presented in Part II – proposes that activist hedge funds can play a unique role in a sustainable capitalism framework by nominating specialist directors with climate or energy transition expertise to corporate boards. Chapter 7 considers socially responsible activism and presents a theoretical framework of ESG hedge fund activism.
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    Beneficial Ownership and the Attribution of the Res in UK Tax Law
    Ooi, Vincent Khay Hoe
    In UK tax law, the beneficial ownership concept is an important method of attribution which connects a *res* to an owner for the purposes of tax law. The title of this thesis may be broken down into four components: 1) beneficial ownership; 2) attribution; 3) *res*; and 4) UK tax law. This thesis will therefore explore what beneficial ownership is, how it performs its main function of attributing a *res* to a person, what a *res* is and what other rights may be attributed, and how the above applies within the confines of UK tax law. This thesis briefly discusses related (but distinct) concepts of beneficial ownership in other areas of tax law but focuses on the concept as it applies in the context of what it refers to as ‘UK domestic tax law’. Beneficial ownership is part of a group of related concepts (referred to collectively in this thesis as ‘combined subdivision variants’) which largely serve a similar purpose and are often interchangeably used. More broadly, beneficial ownership is one of several methods of attribution used in UK tax law to connect a *res* (or, more broadly, an asset) to a person for various tax purposes. This thesis considers the distinctiveness of the beneficial ownership concept and how it fits within this broad taxonomy of methods of attribution. Four main research questions have been framed and answered by this thesis: 1) why is it important to attribute assets (and *res*) to persons under UK tax law; 2) what are the methods of attribution (especially beneficial ownership) and how are they used in UK tax law; 3) how can the methods of attribution be used in legislative drafting to achieve tax policy goals; and 4) how might a framework for using methods of attribution to achieve drafting goals be developed?
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    The Writ of Certiorari and Its Scope, 1600-1800: For the Orderly Administration of Justice
    Warchuk, Paul
    This thesis employs an internal legal history methodology to examine the writ of certiorari in the seventeenth and eighteenth centuries. Using legal manuscripts and parliamentary records, it aims to re-evaluate the conventional answers to four key questions: how did the Court of King’s Bench come to use the writ of certiorari to quash administrative decisions? What was the purpose of the writ of certiorari? Why did Parliament begin to restrict certiorari? And, how did the judges react to these early Parliamentary attempts to restrict certiorari? It is argued that the writ of certiorari permitted the judges of the King’s Bench to capture a prerogative power that had theretofore been exercised by the Privy Council—supervising administrative decision-making. However, certiorari not only emerged with the blessing of the Crown, but greatly benefit the Crown. The focus of the writ of certiorari was on orderly administration of justice. The judges used certiorari to ensure that inferior judicial bodies implemented the law in a well-organised and controlled way. Parliament recognised the value of certiorari but also its costs. The earliest restrictions were primarily targeted at abuse by vexatious litigants. As the law of certiorari continued to develop, many promoters of legislation came to see the cost and delay of certiorari as incompatible with their desire for quick and cheap administration. Within the parliamentary process, a few judges expressed concern at restricting certiorari, but others—including Sir Edward Coke and Sir Matthew Hale—played a significant role in drafting such restrictions. In court, the judges interpreted restrictions on certiorari using conventional principles of statutory interpretation. The overall result of their interpretations was not clearly in favour or clearly against restricting certiorari. Rather, it was guided by their desire to maintain a well-organised and controlled judiciary, subordinate to the King’s Bench.
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    Public Law and Immigration Justice
    Wallace, Duncan
    What roles have lawyers played in the British immigration system? Have these roles made the system more just? This thesis tackles these questions by focusing on the doctrines and ideas of public law. Chapter 2 discusses 19th-century legal debates about immigration practices of the British colonies. It claims that there was a rough consensus about the need for legal limits not only to these practices but corresponding practices that might be adopted in Britain. Chapter 3 surveys the contemporary literature on immigration justice, isolating principles that are salient for the appraisal of public law doctrines. It also explains major changes that occurred to the legal order of immigration control across the 20th century. Chapter 4 deals with administrative law. It argues that this branch of public law has enhanced the degree to which immigration control facilitates democratic self-determination and has provided tools for resisting dangerous practices of immigration detention. But it has not constrained or even exposed the rationale for the government’s contentious control of economic immigration. Chapter 5 deals with human rights law. In the face of political risk, this branch of public law has protected many immigrants from unjustifiable deportation. In a curious role reversal, the interventions of human rights lawyers resemble the Home Office’s treatment of the criminal courts’ earlier practices of recommending immigrants for deportation. But more work must be done by human rights lawyers to connect the right to respect for private life with the integration and social equality of immigrants (including unauthorised immigrants) within the community. Chapter 6 deals with anti-discrimination law. It argues that lawyers have largely failed to undo the historical disapplication of this branch of public law to immigration control; one current feature of this legacy is the apparent lawfulness of the ‘hostile environment’. Chapter 7 reflects on the implications of immigration lawyers’ achievements for the constitution. It concludes that the supposed principle of aliens’ general vulnerability to exclusion and deportation, defended by John Finnis and assumed by other writers, needs qualification.
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    The Constitution of Mercy
    Campagna, Giordana
    Recent alleged abuses of the pardon power by presidents in Peru and the US have drawn attention to a concept of the modern constitutional state that has largely operated under the radar: mercy. In addition to manifesting itself in the pardon power, mercy can also be found in the practices of judges who sentence defendants leniently. Both executive and judicial mercy have been criticised for conflicting with the rule of law and legal justice, which are key principles of the constitutional state. There are two main criticisms. First, pardons are usually understood as being unfettered by legal principles such as the principle of treating like cases alike, which is seen as conflicting with the rule of law. Second, by allowing judges to treat defendants more leniently than what legal justice requires, mercy is seen as being out of place in the constitutional state. What these criticisms have overlooked is that pardons and judicial mercy operate according to different logics. I argue in this thesis that they are modern-day instances of two different archetypes of mercy. Pardons are best conceived as an instance of the ancient Roman concept clementia, and judicial mercy is best conceived of as an instance of the Christian concept of misericordia. Deployments of both forms of mercy result in the lenient treatment of the beneficiary. However, they differ in that exercises of clementia do not require a specific motivation and are not constrained by law, which means that, legally speaking, the benefactor of clementia enjoys full discretion in either bestowing it or not. This is in contrast to exercises of misericordia that must be exercised for reasons of compassion and its exercise goes against the law. As I demonstrate, viewing executive and judicial mercy as instances of clementia and misericordia, respectively, is not only of historical interest. It also helps us understand why some of the criticisms levied against contemporary instances of executive and judicial mercy fail. Judicial mercy conflicts with legal justice and the rule of law due to its legacy of misericordia. But executive mercy, as an instance of clementia, does not. While not taking a stand on the respective desirability of these two forms of mercy, my thesis lays the foundation for informed future assessments of what, if any, role mercy should have in the constitutional state.
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    Marine Protected Areas and the United Nations Convention on the Law of the Sea
    Kim, So Yeon; Kim, So Yeon [0000-0001-5341-7553]
    Marine Protected Areas (MPAs) are specifically designated zones of restricted human activity, based on ecological, biological, or socioeconomic factors. Since the adoption of the United Nations Convention on the Law of the Sea (UNCLOS) in December 1982, states and international organisations have increasingly utilised the MPAs as a tool for environmental protection. A number of MPAs are now found in the Exclusive Economic Zones (EEZ) of states and on the high seas; whereas previously, MPAs were rarely designated beyond the territorial sea. Both EEZs and high seas MPAs introduce restrictions on human activities such as fishing, shipping, scientific research, vessel discharges and waste dumping. This thesis examines the changing balance of the law of the sea, demonstrated through the development of MPAs and restrictive measures of the sort identified above. By delving into the law and politics of designation and management of MPA regimes, this thesis conducts a comparative analysis of MPA regimes. This thesis argues that the MPA regimes are the implementation of the environmental obligations under UNCLOS and states’ active interpretation of international law to expand environmental interests. This expansion is observed in the law and practice of MPA regimes, on how the regimes circumvent or overcome their legal limitations and endeavour to induce state participation. This thesis concludes that the environmental interests shown through the MPA regimes are tipping the balance of interests in the law of the sea. This thesis is a doctrinal exploration of five MPA regimes. The five MPA regimes include two situated exclusively within the EEZs of states and three on the high seas. In the EEZ, the International Maritime Organization’s Particularly Sensitive Sea Areas, and the Helsinki Commission’s Baltic Sea MPAs are examined. On the high seas, the 1980 Convention on the Conservation of Antarctic Marine Living Resource MPAs, the International Seabed Authority’s Areas of Particular Environmental Interests, and MPAs under the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic are studied.
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    The Inclusion of Land Within a Personal Property Security Act (PPSA) Framework in Anglophone Sub-Saharan Africa: A Case Study of Ghana
    Osei-Tutu, Benjamin
    Through a mixed methodology that employs qualitative socio-legal and doctrinal approaches to legal research, this thesis considers the inclusion of land within a Personal Property Security Act (PPSA) framework of modern secured transactions in Ghana, as an example in Anglophone sub-Saharan Africa. This consideration is in the broader context of the main intellectual debates about secured transactions law reform, namely; (i) whether and how secured transactions reform produces economic benefit, through increase in certainty and reduction in transaction cost, and; (ii) how far it is legitimate to take a legal framework from one country and transplant it into another with different social and economic issues, as well as a different legal culture. This thesis, thus, provides a case study of how a legal transplant (the PPSA/Model Law system) can be adapted to relate specifically to the needs and problems of a particular state or group of states and throws light on the challenges created by that type of adaptation. It is, however, not an economic study that examines or proves whether economic benefits from this reform have been attained in Ghana, but rather identifies the benefits of such an adaption of the PPSA relating to how the inclusion framework promotes legal certainty, which is (as a matter of the application of transaction cost theory) expected to enhance access to credit as well as lowering the cost of credit. The associated challenges with such an adaptation are identified as both conceptual and practical. This conclusion, among others, is informed by the qualitative study. In addition to providing a basis for further reform and refinement of the reform law in Ghana, both on the books and in practice, this thesis initiates a debate on the desirability and/or feasibility of the inclusion of land within the secured transactions regimes of other Anglophone sub-Saharan Africa countries. This thesis argues that, despite the accompanying challenges, including land in a PPSA framework of modern secured transactions in Anglophone sub-Saharan Africa is a more legally efficient arrangement for the use of land to access credit than the traditional real property mortgage regime, especially in Ghana and other countries in the region that have land administration and real property mortgage law challenges.
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    Policy Referendums in the United Kingdom, New Zealand and Australia: Constitutional Functions and Effects
    Psycharis, Matthew
    This thesis examines the theory and practice of ‘policy referendums’ -- i.e. referendums held on questions which are *not* fundamental constitutional issues. In the wake of the 2014 Scottish independence referendum and the 2016 Brexit referendum, much was written on how referendums on certain constitutional issues could be understood to operate within Westminster-style constitutions, however no major work has considered the conduct of policy referendums. This thesis looks at the conduct of this latter class of votes across the United Kingdom, New Zealand and Australia. It is the first detailed study of the subject-matter. In those places, a surprising number of such policy referendums have been held (or have at least been proposed to be held): where, in New Zealand, dozens of national votes on ordinary policies have addressed topics including the state-ownership of banks and public infrastructure, liquor licensing laws, and the legalisation of assisted suicide. In Australia, policy referendums (or ‘plebiscites’, as they are called there) have addressed topics including military conscription and marriage equality. In the United Kingdom, too, a wide range of examples exist, from across the 20th century, for the proposed incorporation of policy referendums into the ordinary legislative process. Some of these were reflected in draft laws and, at the level of the United Kingdom’s constituent countries, a series of policy referendums have in fact been held. The old assumption is that such policy referendums are little more than political theatre or a mass opinion poll, and have little bearing on the normative architecture of the constitution. It is *that* assumption which is tested in this thesis, through undertaking a series of country-based case studies. The conclusion reached is that, in the uncodified or partially codified constitutional communities here considered, it is not productive to distinguish between ‘constitutional’ and ‘policy’ referendums. In flexible constitutions, both exercises can bear upon how power is constructed under the constitution, and both can operate as vectors of informal constitutional change. In the result, we must think more carefully about how and why we engage in popular politics on ‘ordinary’ matters.
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    Teleology in the Law of International Organisations
    Clark, Tim; Clark, Tim [0000-0001-6925-3979]
    This thesis considers the nature and use of purposive legal reasoning in international law, and the particular role it plays in the law of international organisations (IOs). I begin by examining the concept of purpose, the multiple levels of abstraction at which it is identifiable, and the different ways it is operationalised in international legal argument. I demonstrate that in addition to its familiar hermeneutic role, teleological reasoning is used both to develop the law, and as a means of restraint. Common to all of these applications, however, is a normative foundation derived from the principle of good faith. Turning to IOs in particular, I argue that purpose plays an essential role in reconciling the divide between their constitutional and contractual dimensions, allowing them to exercise a will that is simultaneously autonomous and yet limited. A consequence of the very nature of IOs, therefore, is that their purposes are designed to serve as both a vivifying force and a source of limitation. The remainder of the thesis explores these dynamics through three case studies. The first examines the relationship between purpose and power. Drawing on early case law regarding the competences of the UN and the European Economic Community, I argue that a mid-century ‘teleological turn’ in legal reasoning saw a shift towards purpose as a tool of institution-building and away from its restraining function. The second explores the temporal dimension of purpose—whether and how it can change over time—focusing on the debates within the International Whaling Commission as its functions evolved, in practice, from managing a common exploitable resource to conserving whales as an end in and of itself. A final case study on the World Bank and its relationship with human rights illustrates the tension between the notion of ‘speciality’ in the law of IOs and the desire for harmony between the multiple purposes to which states commit themselves. Rather than seeing individual IOs as teleological ‘silos’, I propose an alternative approach which seeks to accommodate the purposes of an individual institution alongside wider horizontal and vertical goals. Overall, the thesis offers a holistic theory of teleological reasoning and its role in the law of IOs; one which recognises not only its familiar function as a source of empowerment, but also its potential as a means of restraint and, ultimately, of harmony.
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    Cooperative Human Rights Obligations: Operationalising Cooperation for the Effective Protection of Civil and Political Rights in Transnational Constellations
    Achermann, Katja
    This thesis examines how complex interdependence among states can be reflected and the consequent imperative of cooperation to effectively ensure civil and political rights operationalised in international human rights law. It has long been recognised that in light of states’ economic (inter-)dependence, international assistance and cooperation are necessary to enable states to fully realise economic, social, and cultural rights. In contrast, in the context of civil and political rights the concept of interdependence and its consequences have barely been explored. Seeking to fill this gap, the thesis initially outlines how transnational phenomena such as climate change or pandemics intensify states’ interdependence and extend it beyond the purely economic realm. It shows that this undermines states’ capacity to effectively ensure the civil and political rights of individuals within their territories and subject to their jurisdictions. On the basis thereof, the thesis proposes that states should and in fact do incur obligations to act jointly and cooperate if required to effectively protect civil and political rights in transnational constellations. The thesis uses the limited but growing case law on cooperative human rights obligations as a starting point for thinking about how the traditional co-existence paradigm could be replaced and obligations to act jointly and cooperate operationalised within existing frameworks for the protection of civil and political rights. It begins by exploring the collective enforcement character of human rights treaties and how it ought to affect the conceptualisation of the relationship of states parties thereto as a foundation for cooperative human rights obligations. The thesis subsequently reflects on which states should incur cooperative human rights obligations. It argues that a capacity-based re-conceptualisation of (extraterritorial) jurisdiction would contribute to an effective allocation and thus operationalisation of obligations to act jointly and cooperate. The thesis continues to examine the nature, contextual emergence and determination of the scope and content of cooperative human rights obligations. In particular, it proposes to situate cooperative human rights obligations along a spectrum. At its minimal end, cooperative human rights obligations are conceptualised as obliging states not to undermine other states’ capacity to ensure civil and political rights. In contrast, a maximalist interpretation could conceivably require states to cooperatively achieve a specific outcome. The thesis finally critically reflects on states’ responsibility for breaching cooperative human rights obligations. It focuses particularly on the allocation of the content of responsibility among multiple contributing states, advocating for their joint and several responsibility.
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    Empire and Emergency: Reverberations of the British Empire in the Authorisation of Internment under the Defence of the Realm Acts
    Freund, Rebecca
    Regulation 14B of the Defence of the Realm Acts, which was issued in June 1915, empowered the Secretary of State to intern individuals, including British subjects, he deemed to be “of hostile origin or association” for the purpose of “securing public safety or the defence of the Realm”. The Defence of the Realm Acts, the primary legislation enacted for British home security during the war, bestowed very broad powers, but made no mention of internment. Accordingly, Regulation 14B authorised internment which had not been expressly authorised by Parliament. However, since the seventeenth century it had been a matter of great constitutional importance that detention without trial could only be authorised expressly by Parliament. Thus the introduction of Regulation 14B in terms of broad empowering legislation, but without express empowerment to authorise detention, is a striking moment in British constitutional history. This thesis seeks to contextualise and understand the origins of Regulation 14B. In particular, it investigates the relationship between the manner in which Britain governed its Empire and Regulation 14B. Two questions are addressed. The first relates to the relationship between experiences in Empire and the passage of the Defence of the Realm Acts, without which Regulation 14B could not have been issued. Key here is the Government decision to rely on legislation as opposed to martial law for the purposes of home security during the War. The second question relates to the relationship between experiences in Empire and Regulation 14B itself. A number of instances of authorisation of detention without trial in the British Empire are considered. This thesis concludes that there is evidence that the use of martial law in the colonies directly influenced the decision to enact the Defence of the Realm Acts. However, the available historical evidence is less clear as to the influence detention powers in the Empire had on Regulation 14B.
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    The Better Regulation Burden Reduction Mechanisms: A Lens for the Evaluation of Regulatory Practices between 2010 and 2019
    Ollerenshaw, Katherine
    The Coalition Government announced in 2010 that it would “cut red tape by introducing a ‘One In, One Out’ rule whereby no new regulation would be brought in without other regulation being cut by a greater amount”. The One IN, One OUT regime came into effect on 1 January 2011. It was superseded by One IN, Two OUT with effect from 1 January 2013. That was followed by a One IN, Three OUT requirement in 2016, accompanied and then replaced by a statutory target for impact reduction (the Business Impact Target or BIT). But how effective are these targets and regulatory off-setting requirements? What can they reveal about regulatory practices in the period 2010 to 2019? And what are their broader implications? After tracing the origins of the burden reduction mechanisms and describing their scope, methodology and compliance systems, the research creates a lens by coding primary and secondary legislation passed during the period 2010 to 2019 according to its status under those mechanisms, thereby isolating measures with an impact on business and civil society and categorising them according to their contribution towards burden reduction and/or their qualification for exclusion or exemption. As a first step, the research then turns the lens inwards to gain insights into the operation of the system of burden reduction itself, and it uses those insights to discuss the ramifications of a mandated system of burden reduction. Next, the research analyses the relationship between the drive for burden reduction and how regulatory legislation was structured and effected between 2010 and 2019. It starts by using the lens to quantify the prevalence, association with burden reduction and broader connotations of the three ancillary mechanisms associated with the burden reduction mechanisms: namely, Legislative Reform Orders, the Red Tape Challenge and special treatment for smaller businesses. Then, having collated themes associated with what Tony Blair’s Government rebranded the “Better Regulation” initiative from reports issued under the auspices of the Better Regulation Task Force and Better Regulation Commission, the data is used to evaluate those themes. Finally, the research explores what is termed “the fragmentation of regulation”, a phenomenon that captures the net effect (and logical extension) of several of the Better Regulation-inspired practices identified earlier.