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THE BRISTOL LAW REVIEW 2017 Edition

Editor-In-Chief Christina Chambers

Managing Editor Jacob Morgan

Articles Editors Toby Chandler Serena Crawshay-Williams Tristan Goodman Milica Kosanovic Andrew Macsad Riccardo Vecellio Segate

Research Editors Toby Cohen Darius Leong Mary-Rose Lin Raeesa Rajmohamed Winnie Robinson-Fell Emelia Smith Academic Adviser Dr Eirik Bjorge

THE BRISTOL LAW REVIEW 2017 Edition Dear Readers, It has been our great privilege to work on the 2017 edition of the Bristol Law Review. This year we have innovated in a number of ways to build on the publication’s strong foundation. We have set up a website and blog that accepts submissions from across the legal profession (www.bristollawreview.co.uk), reached out to a wide range of students through social media, and solicited academic articles from all levels of the Law School community. The Bristol Law Review represents a platform for exceptional students to showcase their writing and also provides a unique educational experience for its editors. As such, we believe that the journal is an integral part of the Law School that will only continue to grow in importance in the future. The selection of essays in this issue is decidedly eclectic, reflecting the broad range of interests and talent that Bristol’s aspiring legal scholars possess. Many of these pieces are highly topical and provide valuable insight into current events in the UK and the world. We are thankful to all of our contributing authors and the editorial board for their dedication. We must also thank Dr Eirik Bjorge and Dr Jennifer Collins for their guidance as academic advisers, Dr Albert Sanchez Graells for his training session and Head of School Joanne Conaghan for her support. Finally, we are grateful to professors Julian Rivers and Jonathan Burnside for recommending to us some of the best final year research projects from last year’s graduating class. These works populate the majority of the issue you are about to read. Christina Chambers Editor-In-Chief

Jacob Morgan Managing Editor

THE BRISTOL LAW REVIEW 2017 Edition On returning from a trip abroad, Mr Scott-King, passionate classics master at a minor public school and central character of Evelyn Waugh’s Scott King’s Modern Europe (Chapman & Hall 1947), is told by the school’s headmaster, professing to be “an old Greats man” himself, that unfortunately there is no longer any interest in the classics. The headmaster suggests that ScottKing combine his teaching of the classics with something a little more modern: “Parents are not interested in producing the ‘complete man’” anymore; “[t]hey want to qualify their boys for jobs in the modern world”. Scott-King replies that he thinks “it would be very wicked indeed to do anything to fit a boy for the modern world”. And to the headmaster’s suggestion that this is a short-sighted view, Scott-King has this to say: “There, headmaster, with all due respect, I differ from you profoundly. I think it the most long-sighted view it is possible to take.” The pertinence of these lines does not depend on the fact that Waugh’s classics master was based on J L Brierly, a law professor at All Souls College, Oxford. Many of today’s law students strive first and foremost to be qualified for “jobs in the modern world”, and believe that the study of law in a university should be geared in the first instance towards learning just about enough successfully to answer four prepared questions in an examination. More broadly, trying to prepare students for “jobs in the modern world” seems today to have become the reigning philosophy of our law schools (though, of course, in common with Scott-King’s headmaster, they profess avidly to believe in more fundamental values). In reality, this approach is a short-sighted view of things. Editor-In-Chief Christina Chambers, Managing Editor Jacob Morgan and their able team of editors at the Bristol Law Review are to be commended for the long-sighted view they take of the study of law. It might be thought that, apart from creating a community of individuals working towards a common goal and holding in one’s hand a publication bearing one’s own name, few of the rewards of having spent hundreds of hours editing a student law review are of the instant kind. That is of course a mistake. We are told, in an old epigram of which Waugh’s classics master would have approved, to learn not for school but for life — and that is exactly what the editors of the Bristol Law Review have chosen to do. By choosing in their spare time to edit, critique, and amend the legal analyses of their peers; to improve on their drafting, mode of expression, and something as mundane as their footnotes, they are in a very real way readying themselves for life beyond the horizon of the final exam. They are through their efforts attaining that most unfashionable of characteristics — the completeness of character at the heart of Scott King and his ‘modern’ interlocutor’s conversation. Beyond that it is agreeable also to be able to report that the more immediate fruits of their labours — the contents of the issue you are holding in your hand — are of a quality of which they can be proud. Eirik Bjorge Academic Adviser for the Bristol Law Review

THE BRISTOL LAW REVIEW 2017 Edition CASE COMMENTARY Law and Politics in the Supreme Court: A Comment on R v Miller Dr Philip Syrpis.................................................................................................................11 ARTICLES Should English Contract Law Adopt a General Duty to Negotiate in Good Faith? Jason Chen.........................................................................................................................18 Would Limiting Compulsory Licensing Availability Under TRIPS to a List of Eligible Diseases Increase Access to Medicine in the Developing World? Sophie Loveridge...............................................................................................................28 The Crisis in Crimea: Does the 2014 Military Intervention in and Subsequent Annexation of Crimea by the Russian Federation Constitute a Violation of the Prohibition on the use of Force Enshrined within Article 2(4) of the UN Charter? Dominic Dickinson.............................................................................................................54 “Playing Roulette with the Health of Children”? The UK Regulatory Balance Between Protecting the Rights, Safety and Well-being of Children and the Commercial Interests of the Industry in Paediatric Clinical Trials Charlotte Chamberlain......................................................................................................73 £1-an-Hour Jobs: Fears of Forced Labour Practices Materialising in UK Immigration Removal Centres Serena Crawshay-Williams................................................................................................94 Are we ‘Sleepwalking into a Surveillance Society’? Lukia Nomikos.................................................................................................................111 Should there be a Human Right to Civil Disobedience? Matt Bignell.....................................................................................................................129 Regulating ‘New Wars’ Using International Humanitarian Law: Overcoming the Challenges Posed by Conflict Classification and Non-State Actors Eleanor Bath....................................................................................................................146 Do the recent changes in the UK’s approach to the deprivation of citizenship and statelessness constitute an unacceptable attack on British citizenship? Will Merry........................................................................................................................165

THE BRISTOL LAW REVIEW 2017 Edition

Cᴀsᴇ Cᴏᴍᴍᴇɴᴛᴀʀʏ

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LAW AND POLITICS IN THE SUPREME COURT: A COMMENT ON R V MILLER Dr Philip Syrpis By a majority of 8 to 3, the Supreme Court held1 that in light of the terms and effect of the European Communities Act 1972, “the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course”2. Within hours, the European Union (Notification of Withdrawal) Bill, authorising the Prime Minister to trigger Article 50, was published. It passed3 through the House of Commons unscathed. A White Paper,4 setting out the Government’s plan for Brexit, such as it is, has also been published. The purpose of this comment is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit. It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion. The majority in the Supreme Court upheld the principle that major changes to the UK’s constitutional arrangements, such as would result from withdrawal from the EU, require Parliamentary legislation. They identified the decision to trigger Article 50 as the key constitutional moment; and held that Parliamentary involvement was accordingly needed at that stage. The Court rejected the argument that ministers might have the power to trigger Article 50, absent Parliamentary authorisation, on the grounds that, once Article 50 is triggered, the role of Parliament would be pre-empted; the die would already be cast.5 Nevertheless, the Court stated that the form that legislation on the triggering of Article 50 should take “is entirely a matter for Parliament”.6 It chose to add that “the fact that Parliament may decide to content itself with a very brief statute is nothing to the point”.7 This is an orthodox, rather formalistic, position; which affirms the sovereignty of Parliament as the key principle of the UK’s unwritten constitution, and which acknowledges that there is a clear separation between law and politics.

R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5. 2 ibid [101]. 3 Unattributed, ‘MPs debated the Government’s plan for Brexit’ (Parliament, 7th December 2016) <https://www.parliament.uk/business/news/2016/december/mps-debate-the-governments-plan-for-brexit/> accessed 4 April 2017. 4 HM Government, The United Kingdom’s exit from and new partnership with the European Union (White Paper, Cm 9417, February 2017). 5 Miller (n 1) [92] and [94]. 6 ibid [122]. 7 ibid.

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The approach of the dissenting judges was rather different. Their argument was that the exercise of what they see as the prerogative power to trigger Article 50, would not render the role of Parliament merely nugatory. Lord Reed stated that “Parliament retains full competence to legislate so as to protect rights before withdrawal occurs”.8 And, equally importantly, he found that “controls over the exercise of ministerial powers under the British constitution are not solely, or even primarily, of a legal character”.9 Thus, the legitimacy of the Brexit process is not dependent on Parliamentary authorisation of the Prime Minister’s decision to trigger Article 50, but on subsequent legal (via the passage of legislation) and political (via scrutiny of the Executive as the negotiations unfold) oversight. According to Lord Carnwath, “whatever the shape of the ultimate agreement, or even in default of agreement, there is no suggestion by the Secretary of State that the process can be completed without primary legislation in some form”.10 Thus, “talk of frustrating or pre-empting the will of Parliament would be wide of the mark”.11 But, notwithstanding the constitutional significance he attached to Parliamentary scrutiny of the Executive, he warned that “it is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary”.12 Thus, both sides attempt to delineate a line beyond which they, as judges, should not trespass; but at the same time, both refer, and place emphasis on, the political implications of, and context surrounding, the judgment. A House of Commons Briefing Paper,13 set out the ways in which Parliament will be able to scrutinise the government’s Brexit plans in the months ahead. The Briefing Paper does not distinguish sharply between the passage of primary legislation, and mechanisms for holding the government to account. Instead, the focus is on the substance, rather than the form, of Parliamentary involvement. The briefing paper raises a number of doubts concerning the likely robustness of Parliamentary scrutiny; many of which are products of the enduring legal uncertainties surrounding the process of withdrawal. The biggest shortcoming of the judgment is that it did not address the revocability of Article 50, when it had the discretion – possibly even the obligation – to refer that question of interpretation of EU law to the Court of Justice. The Supreme Court was content to proceed on the basis that “it is common ground” that notice once given, cannot be withdrawn.14 The majority referred to “the Secretary of State’s case that, even if this common ground is mistaken, it would make no difference to the outcome of these proceedings”15; while Lord Reed stated that, “even if the process might be stopped, it is common ground that Ministers’ power to give notice under article 50(2) has to be tested on the basis that it may not be stopped”.16 But, plainly, the legal and political – indeed constitutional – significance of the Article 50 notification (and of the Bill authorising the Prime Minister to notify the UK’s intention to withdraw from the EU), depends in large part on the extent to which it, to borrow from the language of the majority, pre-empts future choices. It depends in large part on whether Lord Pannick’s claim that once the Article 50 trigger is pulled, the bullet will inexorably hit the 8

ibid [218]. ibid [240]. 10 ibid [259]. 11 ibid [267]. 12 ibid [240]. 13 House of Commons Library, ‘European Union (Notification of Withdrawal) Bill’ (Parliament, 30 January 2017) <http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7884#fullreport> accessed 4 April 2017. 14 Miller (n 1) [26]. 15 ibid. 16 ibid [169]. 9

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target, can be sustained. Only if Article 50 is irrevocable, it is correct to identify the decision to trigger Article 50 as the key constitutional moment. In the course of the debate in Parliament on the European Union (Notification of Withdrawal) Bill, the government made a ‘concession’ to MPs, offering them a vote on whether to accept the government’s Brexit deal. The key constitutional question is whether this later vote will be meaningful, or whether the die will have been cast. For some, like Labour’s Shadow Brexit Secretary Sir Keir Starmer, the promise of a Parliamentary vote amounted to “a huge and very important concession”17. Others, like Caroline Lucas, co-leader of the Green Party, took the opposite view: “the vote they’re offering, which will give MPs a choice between an extreme Brexit and falling off a cliff edge into World Trade Organisation rules, isn’t a concession, it’s an ultimatum”.18 These differences of opinion, and of approach, are significant. One might feel that they lie in the political rather than the legal realm. But they reflect the concerns expressed in the Supreme Court, and speak directly to the extent to which the role of Parliament might be pre-empted by that stage in the withdrawal process. A further significant shortcoming of the judgment is that it did not pay sufficient attention to the fact that the withdrawal deal depends not only on endorsement by the UK Parliament, but also, as the Commons Briefing Paper recognises, on the agreement of the EU Council and the European Parliament (and possibly the continuing Member States in their own right). The government’s Brexit deal might be endorsed in Parliament but still be rejected by the EU. In such circumstances, and on the understanding that the Article 50 notice is irrevocable, the UK’s withdrawal from the EU, will not (contrary to the understanding of Lord Carnwath) be governed by legislation. Should the withdrawal deal be rejected by the EU side (and provided that the time limit is not extended), the UK will simply leave the EU without any deal. The relationship between law and politics is, of course, a difficult one. A post such as this can do no more than scratch the surface; hopefully prompting further, more detailed, engagement with these themes. There are inconsistencies within each of the judgments, and important differences between them, in particular in relation to the constitutional significance of scrutiny of the Executive. It seems to me that the key demand which we should have of the law is that it should aim to provide a robust framework within which meaningful political contestation can occur. It is, therefore, a cause of huge regret that we still do not know whether Article 50 is reversible; or what the consequences of any withdrawal deal being rejected, not by Parliament but by the EU, are. Given their direct bearing on the points of contestation between the majority and the minority in the Supreme Court, it is to be regretted that the Court chose not to answer these questions, or to refer them to the European Court. It may be that the legal answers emerge, either as a result of separate litigation, or when the European Council issues the guidelines referred to in Article 50(2), in the light of which the negotiations will proceed. If and when legal answers emerge, they will have a profound bearing on the process of the Brexit, sharpening the respective roles of Parliament and the Executive. But, it appears that clarity in relation to the interpretation of Article 50 will come too late to have an impact on what the majority identifies as the key constitutional moment. The Supreme Court judgment therefore represents an opportunity lost.

HC Deb 7 February 2017, col 264. Rowena Mason, Jessica Elgot and Anushka Asthana, ‘Article 50 bill: May sees off attempt to give MPs veto over Brexit deal’ (Guardian, 7 February 2017) < https://www.theguardian.com/politics/2017/feb/07/article-50bill-may-sees-off-attempt-to-give-mps-veto-over-brexit-deal> accessed 4 April 2017. 18

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14 BIBLIOGRAPHY

--‘MPs debated the Government’s plan for Brexit’ (Parliament, 7th December 2016) <https://www.parliament.uk/business/news/2016/december/mps-debate-the-governmentsplan-for-brexit/> accessed 4 April 2017. HC Deb 7 February 2017, col 264. HM Government, The United Kingdom’s exit from and new partnership with the European Union (White Paper, Cm 9417, February 2017). House of Commons Library, ‘European Union (Notification of Withdrawal) Bill’ (Parliament, 30 January 2017) <http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7884#fullreport> accessed 4 April 2017. Mason R, Elgot J and Asthana A, ‘Article 50 bill: May sees off attempt to give MPs veto over Brexit deal’ (Guardian, 7 February 2017) < https://www.theguardian.com/politics/2017/feb/07/article-50-bill-may-sees-off-attempt-togive-mps-veto-over-brexit-deal> accessed 4 April 2017. R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5.

THE BRISTOL LAW REVIEW 2017 Edition

Aʀᴛɪᴄʟᴇs

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SHOULD ENGLISH CONTRACT LAW ADOPT A GENERAL DUTY TO NEGOTIATE IN GOOD FAITH? Jason Chen The reluctance to impose a general duty of good faith in negotiations in English law lies principally in deep-seated objections to the concept,1 mainly that it would exacerbate uncertainty and that agreements to negotiate are unenforceable.2 The first part of this essay will examine how the courts have historically approached good faith, and illustrate the reasoning behind their hesitance to recognise such a duty. Next, there will be a discussion over how recent developments in case law have equipped courts with practicable solutions to mitigate the definitional uncertainty and the unenforceability of agreements to negotiate in good faith. It is submitted that the willingness of the courts to uphold the enforceability of negotiation clauses lends support for the imposition of a duty, and that with sufficient supporting evidence, even bare negotiation agreements should be enforceable. The third section will outline the benefits of a duty of good faith, namely harmonisation with civil law jurisdictions, the promotion of a more consensual approach to negotiation and greater protection of parties’ legitimate expectations, which make its implementation a worthwhile pursuit. Finally, it is submitted that as many elements of good faith are already embedded in the common law, the adoption of such a duty should not give rise to many obstacles. Keywords: contract, contract law, good faith, duty of good faith, common law, civil law, freedom of contract 1. THE HISTORICAL DEVELOPMENT OF THE LAW ON GOOD FAITH The definition of good faith under English law has gradually expanded in recent years. In Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd, Bingham LJ defined good faith as essentially a “principle of fair and open dealing”.3 He noted that “English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness.”4 Since then, the meaning of good faith has gradually expanded to encompass the principle of a respect for the ‘common purpose’ of the parties, which has enabled courts to assess good faith cases on a contextual basis.5 Likewise, the court’s approach to good faith in relation to negotiations has also been in a state of flux throughout history. WN Hillas & Co Ltd v Arcos Ltd laid the groundwork for a relatively broad approach,6 where Lord Wright’s dictum established that even if negotiations do not result in a contract, “there is a contract (if there is good consideration) to negotiate”,7 implying that agreements to negotiation could be enforceable. However, this was to be reversed by later cases such as Courtney & Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd, and the leading House of Lords decision in Walford v Miles, which both adopted strict

Ewan McKendrick, Contract Law (11th edn, Palgrave 2015) 217. ibid; See. 3 Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1987] 1 QB 433 439 (CA). 4 ibid. 5 See Henry Hoskins, 'Contractual Obligations To Negotiate In Good Faith: Faithfulness to the Agreed Common Purpose' (2014) 130 Law Quarterly Review 131.! 6 WN Hillas & Co Ltd v Arcos Ltd [1932] All ER Rep 494 (HL). 7 ibid 505. 2

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approaches.8 In Courtney, Lord Denning reversed the principle in Hillas, holding that an agreement to negotiate would not be binding as it would be too uncertain, and that the courts would be unable to estimate damages.9 Walford concerned the sale of a business by the defendants to the claimants.10 The parties drew up a lock-out agreement, where the claimants provided a ‘comfort letter’ from their bank, in exchange for an agreement that the defendants would terminate negotiations with other parties.11 In spite of this, the defendants later sold the business to a third party, and the claimants brought an action for breach of the lock-out agreement, as well as a breach of the alleged lock-in agreement to continue negotiations in good faith.12 In affirming Lord Denning’s judgment in Courtney, Lord Ackner claimed that the agreement was unenforceable, as the concept of negotiating in good faith was “inherently repugnant to the adversarial position of the parties when involved in negotiations” and “unworkable in practice”.13 Together, these two judgments effectively encapsulate the main objections to adopting a duty of good faith. 2. OVERCOMING THE OBJECTIONS TO A DUTY OF GOOD FAITH A. Definitional Uncertainty One of the chief concerns over the imposition of a duty of good faith is that it would create too much uncertainty due to the lack of a “clear and unequivocal definition”.14 This is reflected by Lord Ackner’s comment on the difficulty in assessing bad faith objectively: “[h]ow can a court be expected to decide whether, subjectively, a proper reason existed for the termination of negotiations?”15 However, a number of recent cases regarding contract performance have clarified the language of this elusive concept. In Berkeley Community Villages v Pullen, Morgan J recognised that satisfying the requirement of good faith involved adherence with the agreed common purpose and expectations of the parties.16 Compared to the definition given by Bingham LJ in Interfoto, Morgan J’s definition places a particular emphasis on collaboration between parties.17 This stance was further affirmed in Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd, where Jackson LJ interpreted good faith as parties working together honestly to fulfil the purposes set out in a clause between the parties.18 When applied, the flexibility of this common purpose principle gives the courts the discretion to assess the facts of a case with a contextual, purposive approach. While the above definitions concern cases involving contract performance, they are easily applicable to negotiations as well. A practical application of this is in the case of Gold Group Properties Ltd v BDW Trading Ltd,19 where the defendant entered into an agreement to build housing on the claimant’s land in return for a portion of revenue.20 The agreement prescribed Walford v Miles [1992] 2 AC 128 138 (Lord Ackner); Courtney & Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd [1975] 1 WLR 297 (CA). 9 Courtney (n 8) 301. 10 Walford (n 8) 128. 11 ibid 129. 12 ibid. 13 ibid 138. 14 Reshma Korde, 'Good Faith And Freedom Of Contract' [2000] UCL Jurisprudence Review 142, 149. 15 Walford (n 8) 138. 16 Berkeley Community Villages v Pullen [2007] EWHC 1330 [97] (Ch). 17 ibid [69]-[70]. 18 Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd [2013] EWCA Civ 200 [112]. (CA). 19 Gold Group Properties Ltd v BDW Trading Ltd [2010] EWHC 1632 (TCC). 20 ibid [3]-[4]. 8

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an obligation to act in good faith, and detailed minimum sales prices subject to negotiation by the parties.21 Eventually, the property market dropped, meaning that the minimum prices were unlikely to be met.22 Subsequently, the parties could not agree on the pricing, the defendant did not develop the site, and the claimant brought an action against the defendant.23 One issue that was considered was whether the claimant breached the good faith obligation by failing to renegotiate the pricing.24 In applying the definition of good faith established in Berkeley, Stephen Furst QC held that due to another clause prohibiting either party from seeking to “increase its profit or reduce its loss at the expense of the other”,25 the claimant was not obligated to negotiate, as the defendant’s profit would be increased at the expense of the claimant.26 However, the defendant may be obligated to do so, as a reduction in price would not have affected the defendant’s profit, but “might have been necessary to permit the Agreement to be performed as envisaged.”27 The courts’ interpretation of the clause allowed the intentions of the parties to be upheld, and thus it appears that the common purpose definition has allowed the courts to take a principled approach to mitigating the issue of uncertainty. B. The Unenforceability of Agreements to Negotiate in Good Faith i.

Negotiation Clauses

Closely linked to uncertainty is the argument that agreements to negotiate in good faith are unenforceable. However, recent case law shows that this depends on the type of negotiation agreement. In Walford, Lord Ackner stated that in particular, a “bare agreement to negotiate has no legal content”,28 citing the difficulty of the courts in construing these agreements and the entitlement of parties to be free from contract.29 Here, it is essential to make a distinction between the bare negotiation agreement that Lord Ackner refers to, and a negotiation clause in a pre-existing contract. The Walford principle of unenforceability still applies to bare agreements, but Hoskins notes that Lord Ackner’s wording did not encompass negotiation clauses.30 Through this loophole, recent cases have been able to give enforceability to these clauses, as the contract tends to provide a suitable framework to construe the intentions of the parties with sufficient certainty using the “purposive approach” described above.31 An example of this is Longmore LJ’s judgment in Petromec Inc v Petroleo Brasileiro SA Petrobras.32 Here, the parties included a clause to negotiate in good faith over the extra costs involved over changes to an earlier contract to upgrade an oil production platform, provided that the defendant would compensate the claimant for the extra cost.33 The enforceability of the clause was not in doubt as the parties had established sufficient intention by virtue of the agreement having been drafted by solicitors, and Longmore LJ commented that in spite of Walford, “it would be a strong thing to declare unenforceable a clause into which the parties 21

ibid [13]. ibid [10]. 23 ibid [4].! 24 ibid [88]. 25 ibid [27]. 26 ibid [91]. 27 ibid [100]. 28 Walford (n 8) 138. 29 ibid. 30 Hoskins (n 5) 158. 31 ibid 159. 32 Petromec Inc v Petroleo Brasileiro SA Petrobras (No 3) [2005] EWCA Civ 891 (CA). 33 ibid [106]. 22

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have deliberately and expressly entered.”34 Similarly, in Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd, Teare J found that a negotiation clause prescribing that the parties enter “friendly discussions” before arbitration was enforceable,35 as it was clear that “no term [was] missing” from the agreement,36 and that the parties intended to use the clause as a measure to resolve disputes.37 These two cases show that, when supplied with an adequate framework where the intention of the parties is clear, the courts are at least willing to uphold the enforceability of negotiation clauses, giving credibility to the idea that the imposition of a duty is viable. ii.

Bare Negotiation Agreement

Despite the dearth of supporting case law, it is arguable that even bare negotiation agreements ought to be enforceable if sufficiently certain. This view stems from the laissezfaire concept of freedom of contract, which provides that parties should have the freedom to form contracts without government intervention.38 Trakman and Sharma point out that an agreement to negotiate in good faith essentially amounts to a serious intention by parties to take certain steps while negotiating.39 As long as parties provide a suitable means from which to interpret their intentions, as outlined above, and give sufficient consideration, then according to the freedom of contract, there does not seem to be a justifiable ground to hold a negotiation to enter into contracts unenforceable.40 Precise documentation such as “a negotiating agenda outlining the issues to be negotiated” could be a workable solution to reinforcing the certainty of a bare agreement.41 In Petromec, Longmore LJ’s statement that the courts should not arrive at a “blanket unenforceability of the obligation” purely because of the difficulty of an issue reflects the court’s desire to respect the freedom of contract,42 as well as a preference to assess the individual circumstances of each case.43 Nevertheless, the lack of recognition over the enforceability of bare agreements remains a significant stumbling block, not least because Walford is a binding House of Lords decision. Therefore, clarification on the enforceability of bare agreements would necessitate either an Act of Parliament or a Supreme Court decision to overrule the judgment in Walford.

ibid [121]. Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd [2014] EWHC 2104 (Comm), [2015] 1 WLR 1145 [58]. 36 ibid [64]. 37 ibid.! 38 Ewan McKendrick, Contract Law (11th edn, Palgrave 2015) 3-4. 39 Leon Trakman and Kunal Sharma, 'The Binding Force Of Agreements To Negotiate In Good Faith' (2014) 73 Cambridge Law Journal 598, 621. 40 ibid. 41 ibid 622. 42 Hoskins (n 5) 142, quoting Petromec (n 32) [119]. 43 Hoskins (n 5) 142. 35

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22 3. POTENTIAL BENEFITS OF A DUTY OF GOOD FAITH

Since the discussion above has demonstrated that courts have adapted practicable solutions to some of the issues of negotiations in good faith, this section will explore the numerous benefits that a duty of good faith can entail. A. Harmonisation of Civil Law and Common Law Firstly, the imposition of such a duty may improve the certainty of international contracts. In contrast to the approach of English law, many other common law and civil law jurisdictions such as the U.S., France and Germany have codified provisions of good faith in the Uniform Commercial Code, French Civil Code and German BGB, respectively.44 This can lead to difficulties with transnational exchanges,45 and litigation in particular can be especially complicated because of the lack of a universal standard.46 Thus, a good faith duty may help to bridge the gap between common and civil law jurisdictions, as parties from different jurisdictions would have a clearer idea of what to expect in negotiations.47 The nature of EU legislation is that it may cause an erosion of certain common law principles.48 But, on the contrary, recognition of a duty of good faith could give English law greater influence in the development of EU law,49 though this prospect may be precluded with the UK’s renouncement of EU membership. B. Promotion of a Consensual Approach to Negotiation A duty of good faith can also foster a cooperative approach to contractual relations, which has appealing public policy implications. English law has a longstanding emphasis on an adversarial approach to negotiation, which was affirmed by Lord Ackner’s comment in Walford that good faith was incompatible with this adversarial approach as it is “inherently inconsistent” with the position of a negotiating party.50 However, the adversarial approach emphasises short-term relationships, whereas modern business practice generally involves long-term relationships.51 In this regard, the courts have moulded the law to fit commercial practice before, such as the expansion of the doctrine of consideration to cover ‘practical benefits’ in Williams v Roffey,52 which has assisted in the “smooth functioning of the construction industry”.53 Likewise, other common law jurisdictions, such as Singapore, have also increasingly advocated the benefits of a consensual approach to negotiation.54 In HSBC Institutional Trust Services v Toshin Development Singapore Pte Ltd, the Singapore Court of Appeal held that an express agreement between parties in a lease agreement to negotiate rental values in good faith should be upheld, as such clauses “are in the public interest, as

Ewan McKendrick, Contract Law (11th edn, Palgrave 2015) 218. Trakman and Sharma (n 39) 628. 46 ibid 600. 47 ibid 599. 48 Mary Arden, Common Law And Modern Society: Keeping Pace With Change (OUP 2015) 60. 49 ibid. 50 Walford (n 8) 138. 51 Alastair Mills and Rebecca Loveridge, ‘The Uncertain Future Of Walford V. Miles’ (2011) 4 Lloyd's Maritime and Commercial Law Quarterly 528, 532. 52 Williams v Roffey & Nicholls (Contractors) Ltd [1991] 1 QB 1 13 (Glidewell LJ) (CA). 53 Mills and Loveridge (n 51) 532. 54 Emirates Trading Agency (n 35) [54]. 45

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they promote the consensual disposition of any potential disputes”,55 which may in turn prompt parties to seek alternative dispute resolution instead of litigation.56 It could also be argued that the courts’ adoption of a purposive approach towards negotiation clauses would improve the transparency of contractual relationships in general, as it will encourage parties to ensure that their intentions are clear. C. Greater Protection of Parties’ Legitimate Expectations A justification for the imposition of good faith in negotiations that is held by some members of the judiciary is that English contract law does not sufficiently protect the legitimate expectations of parties at the pre-contractual stage, which can lead to hardship. Lord Steyn famously stated that the protection of reasonable expectations is the “principal moulding force” of contract law.57 He has in particular criticised the decision in Walford for failing to do so, and expressed his hope that “if the issue were to rise again… the concept of good faith would not be rejected out of hand.”58 Likewise, this view was applied in the Emirates case, where Teare J claimed that Walford had frustrated the reasonable expectation that courts will uphold obligations between commercial parties.59 The judgment in Walford explicitly references only the tort of negligent misrepresentation as being a recoverable condition for losses stemming from reliance on pre-contractual negotiations, and yet this only compensates for the value of reliance, and not for the expectations from the contract.60 If there is no such claim in tort, “there may be no effective remedy at all”.61 A formal recognition of the duty of good faith could be grounds for expanding the scope of remedies available. Trakman and Sharma suggest that possible remedies could entail compensation for reliance damages, out-of-pocket negotiation expenses, loss of chance to negotiate with a third party, or for the transfer of the defendant’s profits to the claimant.62 The possibility of damages is thus also likely to deter parties from acting in bad faith. Certain doctrines of English contract law are also recognised as providing less protection to parties when compared to other jurisdictions. The doctrine of promissory estoppel is a prime example, as English law recognises that estoppel can only be used as a ‘shield’ and not a ‘sword’.63 In contrast, the decision of the High Court of Australia in Waltons Stores (Interstate) Ltd v Maher established that estoppel could be used as a cause of action.64 The claimants of the Waltons case, the Mahers, relied on promises made by the defendants that a deal to demolish and erect a new building on the claimant’s land would be carried out.65 The claimants began to demolish the building, to the knowledge of the defendants, who then later informed the claimants that it would not proceed with the contract.66 The High Court of Australia ruled that while there was no contract, the defendants were estopped from going 55

ibid, quoting HSBC Institutional Trust Services v Toshin Development Singapore Pte Ltd [2012] SGCA 48 [40] (Singapore Court of Appeal). 56 Emirates Trading Agency (n 34) [54]. 57 First Energy (UK) Ltd v Hungarian International Bank [1993] BCC 533 (CA). 58 Johan Steyn, 'Contract Law: Fulfilling The Reasonable Expectations Of Honest Men' (1997) 113 Law Quarterly Review 433, 439. 59 Emirates (n 34) [40]. 60 John Cartwright, 'Protecting Legitimate Expectations And Estoppel In English Law' (2006) 10.3 Electronic Journal of Comparative Law, 8 <https://www.ejcl.org//103/art103-6.pdf> accessed 3 March 2016. 61 Pedro Barasnevicius Quagliato, ‘The Duty To Negotiate In Good Faith’ (2008) 50 International Journal of Law & Management 213, 217. 62 Trakman and Sharma (n 29) 625-626. 63 See eg Combe v Combe [1951] 2 KB 215, 218. 64 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7, (1988) 164 CLR 387 (High Court of Australia). 65 ibid [1] (Brennan J). 66 ibid.!

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back on their promise due to the unconscionability of their actions and the detrimental reliance of the claimant.67 This case exemplifies the principle of protecting legitimate expectations,68 however, such a remedy would not be available under English law. McKendrick notes that judges may need stronger methods to combat bad faith,69 and thus, the imposition of a duty of good faith could potentially be a practicable workaround to areas where existing English law doctrines limit a cause of action. D. Existing Elements of Good Faith in Common Law Despite the lack of a formal recognition of good faith, the principles of the doctrine are inherent in common law. In Yam Seng Pte Ltd v International Trade Corporation Ltd,70 Leggatt J noted that the recognition of an implied duty of good faith in contract performance is “nothing novel or foreign to English law” as it is “consonant to the theme… that reasonable expectations must be protected”,71 as discussed above. Sometimes, it may lead to the same judgments as that of other doctrines. For example, in Ingham v Emes the claimant brought an action against the defendant hairdresser after developing an adverse reaction to hair dye.72 However, the claimant failed to disclose to the defendant that she had a known allergy to hair dye, and thus could not recover.73 Powell suggests that the court could have reached the same judgment more directly had a duty of good faith existed at the time.74 Finally, several doctrines of contract law, including misrepresentation and undue influence, also have embedded elements of good faith.75 The regulation of unfair terms also has a strong overlap with good faith, as identified by Bingham LJ in Interfoto in his judgment that parties subject to onerous clauses ought to be sufficiently informed.76 Section 62(4) of the Consumer Rights Act 2015 explicitly mentions the phrase “contrary to the requirement of good faith” in determining whether a term is unfair.77 That the phrase is explicitly mentioned, and is unchanged from that of the repealed Unfair Terms in Consumer Contracts Regulations 1999,78 further reinforces the notion that good faith is not a new concept to English law. Therefore, as its general ethos is consistent to common law, its implementation should, theoretically, not be a major challenge. The law on negotiations in good faith has seen significant progress in recent years, with the courts laying down a workable definition of good faith. This has been used to successfully enforce negotiation clauses on a contextual basis, supporting the feasibility of the adoption of a general duty of good faith, although the enforceability of bare negotiation agreements may require further clarification. The benefits of a duty of good faith are numerous, and can enhance the protection of legitimate expectations, improve certainty, and foster cooperation between parties in a manner that is consistent to common law principles, making its 67

ibid [38] (Mason CJ and Wilson J). Daniel Davison-Vecchione, 'An Estoppel By Any Other Name' [2012] Surrey Law Working Papers: Short Notes 1, 7. <https://www.surrey.ac.uk/law/pdf/sslwp/An%20Estoppel%20by%20Any%20Other%20Name_Davison%20Ve cchione.pdf > accessed 12 March 2016. 69 McKendrick (n 38) 221. 70 Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB). 71 ibid [145] (Leggatt J). 72 Ingham v Emes [1955] 2 QB 366 (CA). 73 ibid. 74 Raphael Powell, ‘Good Faith in Contracts’ (1956) 9 Current Legal Problems 16, 26. 75 Korde (n 14) 153. 76 Interfoto (n 3) 433. 77 Consumer Rights Act 2015, s 62(4). 78 Unfair Terms in Consumer Contracts Regulations 1999, s 5(1). 68

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implementation an attractive proposition. With the recent expansion in case law in relation to good faith, it will be interesting to see how this area will continue to develop in the future.

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26 BIBLIOGRAPHY

Primary Sources Cases Berkeley Community Villages v Pullen [2007] 3 EGLR 101 (Ch). Compass Group UK and Ireland Ltd v Mid Essex Hospital Services NHS Trust [2013] EWCA Civ 200 (CA). Courtney & Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd [1975] 1 WLR 297 (CA) Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd [2014] EWHC 2104 (Comm). First Energy (UK) Ltd v Hungarian International Bank [1993] 2 Lloydâ&#x20AC;&#x2122;s Rep 194 (CA). Gold Group Properties Ltd v BDW Trading Ltd [2010] EWHC 1632 (TCC). HSBC Institutional Trust Services v Toshin Development Singapore Pte Ltd [2012] SGCA 48 (CA). Ingham v Emes [1955] 2 QB 366 (CA). Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1987] 1 QB 433 (CA). Petromec Inc v Petroleo Brasileiro SA Petrobras (No.3) [2005] EWCA Civ 891 (CA). Walford v Miles [1992] 2 AC 128 (HL). Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7. Williams v Roffey & Nicholls (Contractors) Ltd [1991] 1 QB 1 (CA). WN Hillas & Co Ltd v Arcos Ltd [1932] 147 LT 503 (HL). Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB). Legislation Consumer Rights Act 2015. Unfair Terms in Consumer Contracts Regulations 1999. Secondary Sources Arden M, Common Law And Modern Society: Keeping Pace With Change (OUP 2015).

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Cartwright J, 'Protecting Legitimate Expectations And Estoppel In English Law' (2006) 10.3 Electronic Journal of Comparative Law <https://www.ejcl.org//103/art103-6.pdf> accessed 3 March 2016. Davison-Vecchione D, 'An Estoppel By Any Other Name' (2012) Surrey Law Working Papers Short Notes Issue 2 <https://www.surrey.ac.uk/law/pdf/sslwp/An%20Estoppel%20by%20Any%20Other%20Na me_Davison%20Vecchione.pdf > accessed 12 March 2016. Hoskins H, 'Contractual Obligations To Negotiate In Good Faith: Faithfulness To The Agreed Common Purpose' (2014) Law Quarterly Review 130. Korde R, 'Good Faith And Freedom Of Contract' (2000) UCL Jurisprudence Review 142. McKendrick E, Contract Law (11th edn, Palgrave 2015). Mills A and Loveridge R, 'The Uncertain Future Of Walford V. Miles' (2011) 4 Lloyd's Maritime and Commercial Law Quarterly 528. Powell R, ‘Good Faith in Contracts’ (1956) 9 Current Legal Problems 16. Quagliato P, 'The Duty To Negotiate In Good Faith' (2008) 50 International Journal of Law & Management 213. Steyn J, 'Contract Law: Fulfilling The Reasonable Expectations Of Honest Men' (1997) 113 Law Quarterly Review 433. Trakman L and Sharma K, 'The Binding Force Of Agreements To Negotiate In Good Faith' (2014) 73 Cambridge Law Journal 598.

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WOULD LIMITING COMPULSORY LICENSING AVAILABILITY UNDER TRIPS TO A LIST OF ELIGIBLE DISEASES INCREASE ACCESS TO MEDICINE IN THE DEVELOPING WORLD? Sophie Loveridge Compulsory licensing (CL) was included within the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) as a flexibility. However, it has become difficult for developing countries to rely on, as its use is highly circumscribed by unpredictable barriers, which act as deterrents. Using the example of Thailand, it will be argued that this uncertainty can be traced to the imposition on developing countries of a narrow de facto list, creating a double standard between developed and developing countries. In light of the status quo and the paper’s underlying assumption that CL should be encouraged, it will be submitted that the traditional perception of a list as necessarily detrimental to access should be reconsidered and a framework capable of increasing access to medicine will be presented. Furthermore, criticisms of this framework will be pre-empted and shown to be mitigated by the careful framing of the solution as geared towards increasing access. Keywords: Compulsory licensing, TRIPS, Thailand, regulatory frameworks, healthcare, medicine, developing world, medical law 1. INTRODUCTION A fundamental facet of patents is that by providing a limited monopoly, they enable higher prices,1 according the patentee a return on investment and the incentive to innovate,2 making them a valuable right in the knowledge economy.3 This reasoning, notwithstanding criticism,4 helped justify their global imposition under TRIPS,5 yet is problematic in the healthcare context,6 as roughly a third of the world’s population lacks access to essential medicines,7 a number rising to 50 per cent in Africa and Asia.8 This has been described as “one of the most pressing and morally compelling problems we face as humanity”9 and although myriad factors contribute,10 high prices for patented drugs have been especially criticized.11 1

Brook Baker, ‘Patents, Pricing and Access to Essential Medicines in Developing Countries’ (2009) 11 AMA Journal of Ethics 527, 527 . 2 Arnold Plant, ‘The Economic Theory Concerning Patents for Inventions’ in David Vaver (ed), Intellectual Property Rights: Critical Concepts of Law (Routledge 2006) 44-5; Owain Williams, ‘Access to Medicines, Market Failure and Market Intervention: A Tale of Two Regimes’ (2012) 7 Global Public Health 127, 129. 3 Dana Beldiman, ‘Introduction’ in Dana Beldiman (ed), Access to Information and Knowledge: 21st Century Challenges in IP and Knowledge Governance (Edward Elgar Publishing 2013) 1. 4 Benjamin Coriat and Luigi Orsenigo, ‘IPRs, Public Health and the Pharmaceutical Industry: Issues in the Post-2005 TRIPS Agenda’ in Mario Cimoli and others (eds), Intellectual Property Rights: Legal and Economic Challenges for Development (OUP 2014) 229. 5 Vanessa Kerry and Kelley Lee, ‘TRIPS, the Doha Declaration and Paragraph 6 Decision: What Are the Remaining Steps for Protecting Access to Medicines?’ (2007) 3 Globalization and Health 1, 1 6 Coriat and Orsenigo (n 4) 220. 7 Robert Bird, ‘Developing Nations and the Compulsory License: Maximising Access to Essential Medicines While Minimizing Investment Side Effects’ (2009) 37 J Law Med Ethics 209, 209. 8 Kerry and Lee (n 5) 1. 9 Williams (n 2) 127.

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Compulsory Licencing (CL), which allows the legal exploitation of a patent without the patentee’s permission12 in specific circumstances,13 was included within TRIPS14 explicitly to “minimize the potential negative impact of patents on access to medicines.”15 Thus, although contested by pharmaceutical companies,16 this paper will proceed on the basis that CL can provide developing countries with a valuable tool to increase access to medicine17 and its use should be facilitated in light of the human cost of inaction.18 In pursuing this aim, the current situation is decidedly problematic, as developing countries’ use of pharmaceutical CL19 is constrained by a number of barriers,20 the intensity of which is highly unpredictable,21 as usage engages vested interests22 by suspending the patentee’s ability to enforce their patent,23 rendering effective reliance rare and difficult.24 10

Baker, ‘Patents, Pricing and Access to Essential Medicines in Developing Countries’ (n 1) 527; Chuan-Feng Wu, ‘Transnational Pharmaceutical Corporations’ Legal and Moral Human Rights Responsibilities in Relation to Access to Medicines’ (2012) 7 Asian J WTO & Int’l Health L & Pol’y 77, 79-80. 11 Alexandra Cameron and others, The World Medicines Situation 2011: Medicine Prices, Availability and Affordability (WHO/EMP/MIE/2011.2.1, 3rd edn, WHO 2011) 2; Williams (n 2) 132. 12 Bird, ‘Developing Nations and the Compulsory License’ (n 7) 209; Lionel Bently and Brad Sherman, Intellectual Property Law (4th edn, OUP 2009) 647. 13 Cynthia Ho, Access to Medicine in the Global Economy: International Agreements on Patents and Related Rights (OUP 2011) 128; Riadh Quadir, ‘Patent Stalemate? The WTO’s Essential Medicines Impasse Between Pharmas and Least Developed Countries’ (2009) 61 Rutgers L Rev 437, 452; Sandra Bartelt, ‘Compulsory Licences Pursuant to TRIPS Article 31 in the Light of the Doha Declaration on the TRIPS Agreement and Public Health’ (2003) 6(2) JWIP 283, 295; Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 299, 33 ILM 1197 (TRIPS Agreement) article 31(b) (national emergency or other conditions of extreme urgency), article 31(k) (remedy for anti-competitive practice), article 31(l) (dependant patents); procedural steps: for example TRIPS Agreement, article 31(d), 31(h). 14 TRIPS Agreement, article 31. 15 Shyama Ramani and Eduardo Urias, ‘Access to Critical Medicines: When Are Compulsory Licenses Effective in Price Negotiations?’ (2015) 135 Soc Sci Med 75, 75. 16 Thomas Owen, ‘The 'Access to Medicines' Campaign vs Big Pharma: Counter-Hegemonic Discourse Change and the Political Economy of HIV/AIDS Medicines’ (2014) 11(3) Critical Discourse Studies 288, 288, 299. 17 Kristina Lybecker and Elisabeth Fowler, ‘Compulsory Licensing in Canada and Thailand: Comparing Regimes to Ensure Legitimate Use of the WTO Rules’ (2009) 37(2) Journal of Law, Medicine and Ethics 222, 236; Reed Beall and Randall Kuhn, ‘Trends in Compulsory Licensing of Pharmaceuticals Since the Doha Declaration: A Database Analysis’ (2012) 9(1) PLoS Medicine 1, 2. 18 Michael Ravvin, ‘Incentivising Access and Innovation for Essential Medicines: A Survey of the Problem and Proposed Solutions’ (2008) 1 Public Health Ethics 110, 111; Yugank Goyal, ‘Economic and Procedural Constraints of Compulsory Licences for Medicines’ in Reto Hilty and Kung-Chung Liu (eds), Compulsory Licensing: Practical Experiences and Ways Forward (Springer 2015) 438. 19 Daniel Mandrescu, ‘Compulsory Licensing - Between Health and Competition: Using Competition Law Policy to Promote Access to Medicine’ (2015) 8 Global Competition Review Litigation 167, 168. 20 Olasupo Owoeye, ‘International Patents Law and Public Health: Revisiting the TRIPS Compulsory Licensing Regime and the Doha Paragraph 6 System’ (2015) 37 European Intellectual Property Review 782, 782. 21 Quadir (n 13) 439; Goyal (n 18) 439. 22 Owoeye (n 20) 793. 23 Mandrescu (n 19) 168. 24 See Carlos Correa, ‘The Use of Compulsory Licences in Latin America’ in Reto Hilty and KungChung Liu (eds), Compulsory Licensing: Practical Experiences and Ways Forward (Springer 2015) 44; Donald Harris, ‘TRIPS After Fifteen Years: Success or Failure, as Measured by Compulsory Licensing’ (2011) 18 Journal of Intellectual Property Law 367, 387; Reed Beall and Randall Kuhn, ‘The Time for Pharmaceutical Compulsory Licensing Has Expired’ (2012) 18 Nature Medicine 1168, 1168

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In proposing a solution this paper will argue, first, using the example of Thailand, that the unpredictability factor hindering effective reliance is caused by the problematic existence of a de facto list. The framework of a list of eligible diseases will then be outlined as a solution, for which the respective benefits and potential criticisms will be identified and assessed. 2. THE THAI EXPERIENCE: ILLUSTRATING CURRENT DEFICIENCIES A pre-requisite to an efficient solution is clearly establishing the problem. As regards CL, a discrepancy exists between the legal objective of providing an “efficient and straightforward”25 mechanism, even if intended as a last resort26 and the reality of well-documented political and economic barriers27 rendering reliance difficult, whilst healthcare costs continue to increase.28 Moreover, predicting the intensity of such barriers has proved challenging. Indeed, reactions, whilst negative, remain diverse,29 with certain CLs, especially for HIV medication in lesser developed countries, proving less controversial,30 whilst others provoke significantly more detrimental backlashes.31 Explaining this discrepancy is vital to increasing access, indeed: “The greatest challenge in the use of compulsory licences, therefore, seems to be how to use the licence to achieve maximum drug access without attracting significant opposition or incurring trade sanctions.”32 This essay submits as an explanation for this discrepancy the implicit imposition on developing countries of a narrow list of eligible diseases, despite this having been expressly rejected under TRIPS.33 The list’s existence, although never explicit, can firstly be elucidated through the example of Thailand, which in issuing HIV/AIDS, cancer and heart disease medication CLs,34 became the first developing country to issue CLs for both a chronic disease35 and one outside HIV/AIDS.36

Lybecker and Fowler (n 17) 223. Jamie Feldman, ‘Compulsory Licenses: The Dangers Behind the Current Practice’ (2009) 8 Journal of International Business and Law 137, 137; Owoeye (n 20) 794; Ho (n 13) 133. 27 Ana Revenga and others, The Economics of Effective AIDS Treatment: Evaluating Policy Options for Thailand (The World Bank 2006) 15, 36, 169; Owoeye (n 20) 782. 28 Maria Oliveira and others, ‘Has the Implementation of the TRIPS Agreement in Latin America and the Caribbean Produced Intellectual Property Legislation that Favours Public Health?’ (2004) 82 Bull World Health Organ 815, 816. 29 Goyal (n 18) 439. 30 James Love, Recent Examples of the Use of Compulsory Licenses on Patents (Research Note 2, Knowledge Ecology International 2007) 16-7; Jonathan Burton-Macleod, ‘Tipping Point: Thai Compulsory Licenses Redefine Essential Medicines Debate’ in Thomas Pogge, Matthew Rimmer and Kim Rubenstein (eds), Incentives for Global Public Health: Patents Law and Access to Essential Medicines (CUP 2010) 420. 31 Kevin Outterson, ‘Should Access to Medicines and TRIPS Flexibilities Be Limited to Specific Diseases?’ (2008) 34 American Journal of Law and Medicine 279, 281; Richard Epstein and F Scott Kieff, ‘Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents’ (2011) 78 University of Chicago Law Review 71, 93. 32 Owoeye (n 20) 793. 33 Outterson (n 31) 280. 34 Lybecker and Fowler (n 17) 223, 227-8. 35 Feldman (n 26) 151. 36 Jakkrit Kuanpoth, ‘Compulsory Licence: Law and Practice in Thailand’ in Reto Hilty and KungChung Liu (eds), Compulsory Licensing: Practical Experiences and Ways Forward (Springer 2015) 64; Correa (n 24) 44. 26

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Thailand’s CL sparked “worldwide disapproval”,37 with criticism and concern expressed by academics,38 NGOs,39 the EU,40 conservative media41 and the World Trade Organisation (WTO).42 Furthermore, Abbott withdrew pending patents and threatened not to register drugs in the future,43 whilst the USA placed Thailand on its Priority Watch List,44 causing economic detriment. Undeniably, some of this reaction can be traced to Thailand’s behaviour, with questions raised concerning the drugs’ quality45 and the government’s self-seeking interest.46 Nonetheless, a sizeable portion of the above criticism47 focused on Thailand being within the ‘letter’ but outside the ‘spirit’ of the law,48 as critics acknowledged that Thailand’s CLs fell within TRIPS49 and national law,50 yet differentiated between the HIV/AIDS CL and those issued for cancer and heart disease.51 The latter were subject not only to criticism, but also to questions of legitimacy,52 with Thailand being accused of having radically and inappropriately departed from accepted norms53 in issuing CLs for chronic diseases.54 Moreover, Thailand was accused of “pushing boundaries”55 with cancer and heart disease. The absence here of legal boundaries implies supra-judicial ones,56 which in differentiating between HIV/AIDS and other diseases, suggests an implicit list of

Feldman (n 26) 154. Epstein and Kieff (n 31) 93. 39 Lisa Forman, ‘From TRIPS-Plus? Exploring Right to Health Impact Assessment of Trade-Related Intellectual Property Rights Through the Thai Experience’ (2012) 7 Asian Journal of WTO & International Health Law and Policy 347, 367. 40 Burton-Macleod (n 30) 409. 41 Editorial, ‘Bangkok’s Drug War Goes Global’ Wall Street Journal (New York, 7 March 2007) <http://www.wsj.com/articles/SB117322181443628799> accessed 2 January 2016; Martin Vaughan, ‘In Clash with Activists, Critics Charge Thailand Violation of Trade Rules’ Intellectual Property Watch (19 March 2007) <http://www.ip-watch.org/2007/03/19/in-clash-with-activists-critics-chargethailand-violation-of-trade-rules/> accessed 16 December 2015; Editorial, ‘Drugs in Thailand’ Financial Times (London, 31 January 2007) <http://www.ft.com/cms/s/0/37500f5c-b0cf-11db-8a620000779e2340.html#axzz42WU00 xr5> accessed 17 December 2015 . 42 Forman (n 39) 368. 43 Ibid; Lybecker and Fowler (n 17) 232-3; Ramani and Urias (n 15) 75; Ho (n 13) 149-50. 44 Harris (n 24) 373; Kuanpoth (n 36) 67. 45 Lybecker and Fowler (n 17) 232. 46 Kuanpoth (n 36) 66. 47 Nattapong Suwan-in, ‘Compulsory Licensing - A Long Debate on TRIPS Agreement Interpretation: Discovering the Truth of Thailand’s Imposition on Pharmaceutical Patents’ (2012) 7 Asian Journal of WTO & International Health Law and Policy 225, 257. 48 Pier DeRoo, ‘“Public Non-Commercial Use” Compulsory Licensing for Pharmaceutical Drugs in Government Health Care Programs’ (2011) 32 Michigan Journal of International Law 347, 360. 49 Critical academics: Epstein and Kieff (n 31) 74; USA: Burton-Macleod (n 30) 412; Editorial, ‘Drugs in Thailand’ Financial Times (London, 31 January 2007) <http://www.ft.com/cms/s/0/37500f5c-b0cf11db-8a62-0000779e2340.html# axzz42WU00xr5> accessed 17 December 2015. 50 Kuanpoth (n 36) 71. 51 Lybecker and Fowler (n 17) 223. 52 ibid 225. 53 DeRoo (n 48) 359. 54 Suwan-in (n 47) 240, 257; Beall and Kuhn, ‘The Time for Pharmaceutical Compulsory Licensing Has Expired’ (n 24) 1168; Richard Epstein and F Scott Kieff, ‘Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents’ (2010) John M Olin Program in Law and Economics Working Paper 527, 1, 4 <http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2360&context=journal_articles accessed> accessed 12 December 2015. 55 Burton-Macleod (n 30) 417. 56 ibid 413-5. 38

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eligible diseases, whereby countries invoking CLs for medication outside of the list suffer far greater detriment than those within. This provisional conclusion can be substantiated by examining the CLs granted since TRIPS. When excluding developed countries, HIV/AIDS CLs dominate the list,57 which neither reflects developing countries’ current disease burden,58 nor other drugs having sufficiently low prices or more successful price negotiations,59 as one would nonetheless expect greater variation. This substantiates the idea of a supra-legal requirement in the form of a list,60 whose scope, although unclear, appears narrow, with only HIV/AIDS and occasional pandemics seemingly today less controversial,61 whilst other diseases provoke significantly greater backlash. Although TRIPS itself regulates CL use,62 the existence of this list is problematic, firstly because it applies de facto, rendering its scope difficult to predict and creating uncertainty.63 This considerably dissuades attempts to issue CLs or expand its scope,64 as countries run a significant risk of the detrimental backlash dwarfing any expected benefits,65 reducing the mechanism’s ability to increase access to medicine.66 Secondly, this creates a double standard between developed and developing countries.67 Indeed, the USA68 and other developed countries69 have relied on CL for medication in the past, yet developing countries often lack the ability to effectively challenge such uses,70 due to global power imbalances,71 whilst the lack of clarity means they lack a firm basis on which to defend their own CLs. This appears unfair but also counter-productive, as an effective system should integrate a variety of interests.72 Finally, the existence of a supra-legal requirement73 reduces a system’s legitimacy. Indeed, disputed CLs should be brought before the WTO,74 not subject to supra-judicial criteria and that this is unlikely to happen for controversial CLs, as they

See Beall and Kuhn, ‘Trends in Compulsory Licensing of Pharmaceuticals Since the Doha Declaration (n 17) 4; also see Correa (n 24) 44. 58 World Health Organization, ‘The Top 10 Causes of Death: The 10 Leading Causes of Death by Country Income Group’ (2012) <http://www.who.int/mediacentre/factsheets /fs310/en/index1.html> accessed 13 December 2015. 59 Outterson (n 31) 280. 60 Burton-Macleod (n 30) 412. 61 See Bird, ‘Developing Nations and the Compulsory License’ (n 7) 212. 62 TRIPS Agreement, article 31 (c), (d), (e), (f). 63 Freya Baetens, ‘Book Review of Human Rights and the WTO: The Case of Patents and Access to Medicines by Holger Hestermeyer’ (2009) 58 International & Comparative Law Quarterly 747, 748. 64 ibid. 65 Mandrescu (n 19) 178; Ravvin (n 18) 114; Ho (n 13) 151. 66 Daniel Cahoy, ‘Breaking Patents’ (2011) 32 Michigan Journal of International Law 461, 465-6. 67 Beall and Kuhn, ‘Trends in Compulsory Licensing of Pharmaceuticals Since the Doha Declaration’ (n 17) 2. 68 28 US Code §1498 (patent and copyright cases); Marie Mesidor, ‘Intellectual Property Rights in Competition Law: Compulsory License Issues in Developing Countries’ (2014) 128 Revista da ABPI 17, 20; Correa (n 24) 50. 69 Love (n 30) 1, 6, 13. 70 Susan Sell, ‘Review of Human Rights and the WTO: The Case of Patents and Access to Medicines by Holger Hestermeyer’ (2008) 7 World Trade Review 584, 585. 71 Oliveira and others (n 28) 818. 72 Roger Kampf, ‘From Data to Wisdom: The Contribution of Intellectual Property Rights to the Knowledge Pyramid’ in Dana Beldiman (ed), Access to Information and Knowledge: 21st Century Challenges in IP and Knowledge Governance (Edward Elgar Publishing 2013) 254. 73 Burton-Macleod (n 30) 421. 74 ibid 420; Ho (n 13) 138 .

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often fall within legal requirements,75 confirms both the continuing importance of the de facto list and its delegitimizing effect on the current system. The example of Thailand, supported by an overview of CL, strongly suggests the existence of a de facto list of eligible diseases as a limiting factor explaining the variability of negative responses to CLs, which is problematic in reducing both access to medicine and the legitimacy of the CL framework. A response is thus required on a global level to improve access to medicine in the developing world. 3. FRAMEWORK OF A SOLUTION TRIPS’ wording is very open-ended,76 to allow interpretation in a manner beneficial to countries’ needs,77 however this flexibility has been highly circumscribed in practice by barriers restricting access,78 which is detrimental as rights are only as valuable as their ability to be exercised.79 Thus, although previously proposed lists of diseases have been rejected as limiting,80 this paper submits that changes to the restrictive status quo are required81 and an explicit list, carefully constructed, could allow greater reliance on CL.82 This section will not list drugs but instead outline a framework of criteria for selecting eligible medication and explain how it would fit within TRIPS. The list should apply to public non-commercial use and national emergency, as these allow the negotiation requirement to be waived83 and are most frequently invoked by developing countries for public health,84 thus being most susceptible to the implicit list. The primary question in creating this framework is also the most contentious, namely the list’s general scope. The first issue is whether it should be limited to Doha’s Big 3,85 as has been previously proposed.86 Indeed, Doha contains a presumption in favour of these diseases for national emergencies87 and a narrow list would increase certainty in a manner consistent with the conception of CL as a last 75

Outterson (n 31). Feldman (n 26) 141; Harris (n 24) 384; DeRoo (n 48) 387 . 77 Wee Loon Ng-Loy, ‘Review of Compulsory Licensing: Practical Experiences and Ways Forward’ (2015) 46 International Review of Intellectual Property and Competition Law 624; Do Hyung Kim, ‘Research Guide on TRIPS and Compulsory Licensing: Access to Innovative Pharmaceuticals for Least Developed Countries’ (GlobaLex, February 2007) <http://www.nyulawglobal.org/globalex/TRIPS_Compulsory_ Licensing.html#_III._Current_Topics_Under TRIPS> accessed 3 December 2015. 78 Forman (n 39) 351; Mandrescu (n 19) 167; Kim (n 77) . 79 Christophe Geiger, ‘Rethinking the Enforcement of Intellectual Property Rights at International Level’ in Dana Beldiman (ed), Access to Information and Knowledge: 21st Century Challenges in IP and Knowledge Governance (Edward Elgar Publishing 2013) 284. 80 Burton-Macleod (n 30) 416. 81 Harris (n 24) 397. 82 Feldman (n 26) 165/ 83 TRIPS Agreement, article 31(b). 84 Mandrescu (n 19) 170-1, 178. 85 World Trade Organization, ‘Declaration on the Trips Agreement and Public Health’ (Doha Declaration, 20 November 2001), art 5(k) <https://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.pdf> accessed 25 November 2015. 86 Outterson, (n 31). 87 Kevin Outterson, ‘Disease-Based Limitations on Compulsory Licenses Under Articles 31 and 31bis’ (2009) Boston University School of Law Working Paper 09/26, 8 <http://www.bu.edu/law/workingpapers-archive/documents/outtersonk052009.pdf> accessed 29 November 2015; Ho (n 13) 135. 76

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resort, minimising controversy.88 The key problem lies in achieving consistency with the current disease burden, as limiting reliance to the Big 3 is based on the presumption that this reflects the disease burden of developing countries.89 A notable increase in non-communicable diseases (NCD) in developing countries, however, is contributing to disease convergence between developing and developed countries.90 This challenges the continuing relevance of the Big 3, with no CLs issued for malaria or tuberculosis reflecting their absence from the top eight causes of death in lower- or upper-middle income countries.91 Thailand illustrates this convergence, as although HIV/AIDS represent an important medical burden,92 heart disease and cancer place more strain on medical resources than malaria or tuberculosis.93 Enforcing a list on this basis is therefore “dangerous and unnecessary”,94 as it fundamentally misunderstands developing countries’ disease burdens, which limits access and hinders flexibility to react to pandemics, whilst it also, in perpetuating the misconception, reduces the legitimacy for other drugs in price negotiations. A secondary issue is that philanthropy95 is more readily available for the Big 396 and whilst undue reliance on charity should not be encouraged,97 their existence risks rendering a list on this basis superfluous, especially if certain barriers remain.98 Ascertaining what should fall within the framework is controversial, as one must balance workability with the underlying rationale of increasing access. The list should, therefore, be so far as possible evidence-based, in order to achieve a measure of neutrality between various polarising interests.99 In achieving this neutrality, regard must be had to the changing disease burden,100 which requires including relevant NCDs,101 for which medication is likely needed in large and consistent quantities, rendering it more costly.102 Inclusion thus provides an important option for access, for example, for ischemic heart disease, which represents the top cause of death in lowermiddle income countries103 and a significant economic burden.104 Moreover, many criticisms citing the limiting effect of lists were based on the presumption they would

Suwan-in (n 47) 246. Outterson (n 31) 327. 90 World Health Organization (n 58); Beall and Kuhn (n 17) 6; Outterson (n 87) 9. 91 World Health Organization (n 58). 92 Kuanpoth (n 36) 64. 93 Suwan-in (n 47) 239. 94 Outterson (n 87) 9. 95 Ravvin (n 18) 113; Coriat and Orsenigo (n 4) 231; Baker (n 1) 529-30. 96 See eg Jason Pontin, ‘Q&A: Bill Gates’ MIT Technology Review (Washington, 24 August 2010) <http://www.technologyreview.com/article/420345/qa-bill-gates> accessed 2 January 2016. 97 Owen (n 16) 291. 98 Epstein and Kieff (n 31) 83-4. 99 Lybecker and Fowler (n 17) 222. 100 Wenqi Liu, ‘Approaches to Ensuring Access to Pharmaceuticals Under the New China’s Patent Law’ (2010) 15 Journal of Intellectual Property Rights 228, 228; Outterson (n 87) 9; World Health Organization (n 58). 101 Liu (n 100) 233; World Health Organization, (n 58). 102 Soeren Mattke and others, Improving Access to Medicines for Non-Communicable Diseases in the Developing World (RAND Corporation 2011) 12; Abdesslam Boutayeb, ‘The Double Burden of Communicable and Non-Communicable Diseases in Developing Countries’ (2006) 11 Royal Society of Tropical Medicine and Hygiene 191, 197. 103 World Health Organization (n 58). 104 Thomas Gaziano and others, ‘Growing Epidemic of Coronary Heart Disease in Low- and MiddleIncome Countries’ (2010) 35 Current Problems in Cardiology 72, 72, 101-2. 89

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exclude NCD medication,105 thus including NCDs allows a list to be experienced as beneficial, especially as compared to the status quo, where these diseases provoke such backlash as to rarely be subject to CLs.106 Finally, the WHO essential medicines list may be referred to in achieving this neutrality, indeed, having previously been used to limit CL, as Thailand was criticised for Plavix not featuring on it,107 its role should be made more explicit. This paper would not follow the EU in proposing that CL should be limited to the WHO list,108 as the latter has been criticised as narrow109 and many listed drugs are not patented, especially in developing countries,110 thus indirectly limiting CL.111 It should nonetheless have a role to play, as its criteria of public health relevance, safety, efficacy and cost-effectiveness112 are evidence based, allowing a more accurate reflection of the current disease burden, indeed the WHO list includes medication for various cancers, heart failure and chronic obstructive pulmonary disease (COPD),113 which are increasingly important for developing countries.114 Moreover, the reference to ‘essential’ medicines facilitates justification of listed drugs, whilst avoiding abusive CLs,115 which reduces controversy and increases certainty, enhancing access. The list should therefore have regard to relevant patented drugs within the WHO list but also surpass this by including NCD and other medication established by reference to the current disease burden. A second criterion is ensuring a balanced list, in that it must be wide enough to reflect medical needs and, at the same time, sufficiently narrow to avoid a ‘list within a list’ developing. Arguably, in moving the decision-making process from the national to the international stage,116 TRIPS produced the current imbalance by bringing a host of new interests into conflict,117 making it difficult to achieve an optimum balance,118

105

Outterson (n 87) 9; World Health Organization: Intergovernmental Working Group on Public Health, Innovation and Intellectual Property, ‘Draft Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property: Progress to Date in Drafting Groups A and B’ (The Resumed Second Session of the Intergovernmental Working Group on Public Health, Innovation and Intellectual Property, Geneva, April 2007) 3-4. 106 Beall and Kuhn, ‘Trends in Compulsory Licensing of Pharmaceuticals Since the Doha Declaration’ (n 17) 4. 107 Burton-Macleod (n 30) 417. 108 ‘Common Working Paper of the EC, Hungary, Japan, Korea, Switzerland, and Turkey to the Seattle Ministerial Declaration’ (29 November 1999) 3 <http://www.jmcti.org/2000 round/common01.pdf> accessed 10 January 2016. 109 Amir Attaran, ‘How Do Patents and Economic Policies Affect Access to Essential Medicines in Developing Countries?’ (2004) 23 Health Affairs 155, 160 . 110 ibid 157. 111 Richard Laing and others, ‘25 Years of the WHO Essential Medicines Lists: Progress and Challenges’ (2003) 361 Lancet 1723, 1728. 112 World Health Organization, WHO Model List of Essential Medicines (19th edn, WHO 2015) Explanatory Notes. 113 ibid 19-25, 29, 40-1. 114 World Health Organization (n 58). 115 Robert Bird and Daniel Cahoy, ‘The Impact of Compulsory Licensing on Foreign Direct Investment: A Collective Bargaining Approach’ (2008) 45 American Business Law Journal 283, 306-7 116 Ho (n 13) xii-xiv. 117 Shahid Alikhan and Raghunath Mashelkar, Intellectual Property and Competitive Strategies in the 21st Century (Kluwer Law International 2004) 208; David Bainbridge, Intellectual Property (9th edn, Pearson 2012) 20. 118 Goyal (n 18) 438.

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although the importance of doing so is widely recognised.119 A means of improving the balance could be to integrate cost-effectiveness when deciding between drugs for chosen diseases, despite this being criticised in the WHO context.120 This entails that certain drugs may be excluded where cheaper alternatives exist, generating arguments about second-tier drugs121 or access questions. However, this is outweighed by all parties being likely to acquiesce to the final list due to, for example, reduced concerns regarding blockbuster drugs where cheaper alternatives for the disease exist,122 with the final list having a positive impact. Furthermore, having a mechanism to easily review and revise the list, similar to the WHO one that has been updated eleven times,123 allows for continuing relevance in light of changing disease burdens and enables CL to maintain the flexibility that should be one of it central features.124 A framework, in conclusion, must achieve a balance between comprehensiveness, certainty and flexibility, based in evidence and mandating the inclusion of drugs relevant to current disease burdens. Having set out the framework, the central task is to establish its viability, by asking to what extent TRIPS can be amended to integrate it. Article 31 is, to date, the only WTO agreement to have been amended,125 suggesting that it is flexible enough to encompass these changes. The main issue, therefore, lies in whether the framework proposed could be agreed upon by the divergent interests existing within the “emotionally charged, policy-fraught maelstrom”126 of TRIPS.127 Indeed, when negotiating, developed countries are heavily influenced by their pharmaceutical industries,128 who see strong patents as necessary.129 Conversely, developing countries tend to have generic focused, or little, pharmaceutical industry130 and concentrate more on the barriers patents pose to their ability to provide healthcare,131 which may be backed up with rights justifications, often contained within constitutions.132 This problematic context is compounded by a North-South power imbalance weighted in

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US Congress Office of Technology Assessment, Intellectual Property Rights in an Age of Electronics and Information (OTA-CIT 302, US Government Printing Office 1986) 61; UN Economic and Social Council: Sub-Commissioner on the Promotion and Protection of Human Rights, ‘Economic, Social and Cultural Rights: The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights’ (Office of the UN High Commissioner for Human Rights 2001); DeRoo (n 48) 381-2. 120 Attaran (n 109) 160. 121 Burton-Macleod (n 30) 407. 122 Outterson (n 31). 123 Laing and others (n 111) 1723, 1725 124 Ramani and Urias (n 15) 75. 125 Harris (n 24) 397. 126 DeRoo (n 48) 375; Darren Schuettler, ‘Angered US Firm Excludes Thailand From New Drugs’ Reuters (Bangkok, 14 March 2007) <http://www.reuters.com/article/idUSBKK 277146> accessed 12 January 2016; Committee to Review and Examine the Establishment of Thailand-United States Free Trade Area and others, ‘Report on Result of the Examination of Human Rights Violations’ (2006) 18. 127 Liu (n 101) 228. 128 Ramani and Urias (n 15) 75; Bird, ‘Developing Nations and the Compulsory License’ (n 7) 210; Mandrescu (n 19) 167. 129 Coriat and Orsenigo (n 4) 221; Bird and Cahoy (n 115) 297-8. 130 Mandrescu (n 19) 167; Coriat and Orsenigo (n 4) 224 131 E Richard Gold and others, ‘Are Patents Impeding Medical Care and Innovation?’ (2009) 7(1) PLoS Medicine 1, 2-3 132 Coriat and Orsenigo (n 4) 219; Constituição Federal de 1988, artigo 196 (Brazil); Constitution of the Republic of South Africa Act No 108 of 1996, ch 2 art 27; Constitution of the Kingdom of Thailand (2007), part 9, arts 51-2.

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favour of developed countries,133 with two consequences. Firstly, as developed countries impose the de facto list to their benefit, it may not be to their advantage to clarify and expand the current system134 and, secondly, were a compromise to be achieved, there are worries it would be skewed in favour of developed countries, simply rendering explicit the implicit list. These are valid concerns, however this paper would argue that a satisfactory compromise is achievable. Firstly, despite divergent opinions, countries have reached significant compromises in the past,135 not least with CL and TRIPS. Indeed, when negotiating TRIPS, India opposed pharmaceutical patents,136 whilst the USA argued for significantly restricted CL.137 These incompatible starting positions were nonetheless resolved by TRIPS mandating drug patents yet CL being reasonably unfettered legally speaking.138 In terms of achieving a compromise acceptable to all parties, if a proposal has general acquiescence from pharmaceutical companies, it is likely to be accepted by most developed countries.139 In this respect, that pharmaceutical companies tend to perceive lists as safeguards,140 as they provide an exhaustive list of eligible drugs, thus increasing certainty even if reasonably wide, has been substantiated by developed countries having previously backed proposed lists.141 A list would also likely be experienced as a lesser imposition than other alternatives, such as a tax on patents,142 thus being seen as preferable in terms of changing the status quo. For developing countries conversely, a list with the rationale of increasing the number of drugs eligible for CL without harsh penalties provides an improvement access-wise on the status quo and although developing countries lose theoretical flexibility, they gain in practical advantages. Moreover, uniting together when negotiating could increase collective bargaining power, especially with countries including India or Brazil,143 and Doha itself is evidence that compromises which are legally beneficial to developing countries are achievable,144 whilst a list, being exhaustive, would avoid the post-implementation problems plaguing Doha.145 This section has sought to show that a list structured in a way that increases rather than limits access is, whilst not perfect, as developing countries lose theoretical

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Kerry and Lee (n 5) 1, 7; Peter Yu, ‘The ACTA/TPP Country Clubs’ in Dana Beldiman (ed), Access to Information and Knowledge: 21st Century Challenges in IP and Knowledge Governance (Edward Elgar Publishing 2013) 264; Sell (n 70) 585 134 Bently and Sherman (n 12) 400 135 See eg Doha Declaration, articles 1, 3, 4 136 ‘Multilateral Trade Negotiations The Uruguay Round: Meeting of Negotiating Group of 12-14 July 1989’ (MTN.GNG/NG11/14, September 1989) 79.1. 137 ibid 75; Council for Trade-Related Aspects of Intellectual Property Rights, ‘Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health: Communication from the United States’ (IP/C/W/340, WTO 2002). 138 Harris (n 24) 383; Owoeye (n 20) 790. 139 Bird (n 7) 210. 140 Owoeye (n 20) 791. 141 Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, ‘Meeting of Negotiating Group of 11, 12 and 14 December 1989’ (MTN.GNG/NG11/17, WTO January 1990) 39; Outterson (n 31). 142 Beall and Kuhn (n 24) 1168. 143 Jayashree Watal, Intellectual Property Rights in the WTO and Developing Countries (Kluwer Law International 2001) 19; Kerry and Lee (n 5) 7-8. 144 Bently and Sherman (n 12) 400. 145 Emily Ng and Jillian Kohler, ‘Finding Flaws: The Limitations of Compulsory Licensing for Improving Access to Medicines - An International Comparison’ (2008) 16 Health Law Journal 143, 144; Kerry and Lee (n 5) 7.

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flexibility, a workable solution to increase access and a distinctly acceptable compromise for all involved. 4. BENEFITS OF A LIST AND PRE-EMPTING PROBLEMS This section focuses on the four benefits a list provides to developing countries, throughout which it should be borne in mind that the solution’s underlying rationale is to reduce the unpredictability and deterrent effect of barriers, allowing existing provision to be used more fully.146 The inadequacies of the status quo are central to the first benefit, which reflects more closely on the main justification espoused above: that a list would increase access to medicine. Importantly, putting a list of the existing TRIPS criteria on a legal basis would narrow the scope of eligible diseases, justifying opposition.147 It is thus vital to reiterate that there is little coincidence between unfettered discretion and CL in reality for developing countries, which is highly circumscribed by the de facto list,148 and these factual circumstances render a list advantageous rather than detrimental. Indeed, vague or undefined terms within TRIPS give countries a basis on which to question whether certain drugs fit the legal criteria,149 as they allow for different interpretations between countries. Moreover, due to power imbalances, developed countries’ interpretations often remain unchallenged.150 For example, Plavix was labelled as inappropriate due the number of people affected.151 A list, by contrast, is tailored to the purpose of increasing access to medicine,152 as it segments the market into eligible and ineligible diseases,153 the former being seen as essential. Justifying CLs becomes easier, as the drugs have been previously distinguished as belonging to a class of necessary pharmaceuticals and countries benefit from a presumption of legitimacy and moral high ground, making the process less controversial. Increasing legitimacy further contributes to reducing the subtle yet institutionalised barriers currently preventing effective reliance154 by reducing uncertainty. CL, being widely defined, is inherently uncertain as regards timing and selected drugs,155 which pharmaceutical companies (and, by extension, developed countries) dislike, as it increases the cost and difficulty of risk management.156 This partially explains their backlash, as risk-modelling of potential business harm becomes easier when CL happens rarely.157 A list allows more accurate predictions of diseases CLs may be

146

Mario Cimoli and others, ‘The Role of Intellectual Property Rights in Developing Countries: Some Conclusions’ in Mario Cimoli and others (eds), Intellectual Property Rights: Legal and Economic Challenges for Development (OUP 2014) 509. 147 Outterson (n 87) 1, 3. 148 Coriat and Orsenigo (n 4) 234. 149 Kim (n 77) . 150 Susan Sell (n 70) 585. 151 Suwan-in (n 47) 257; Lybecker and Fowler (n 17) 233. 152 Owoeye (n 20) 793; Bird, ‘Developing Nations and the Compulsory License’ (n 7) 213. 153 Doris Long, ‘Deviant Globalisation and the Rise of Diverse Interests in the Multilateral Protection of Intellectual Property’ in Irene Calboli and Srividhya Ragavan (eds), Diversity in Intellectual Property: Identities, Interests and Intersections (CUP 2015) 71. 154 Ramani and Urias (n 15) 83; Beall and Kuhn, ‘Trends in Compulsory Licensing of Pharmaceuticals Since the Doha Declaration’ (n 17) 6-7. 155 Ng-Loy (n 77) 626. 156 Goyal (n 18) 455. 157 ibid

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issued for, if not timing,158 facilitating risk management and reducing the need for supra-judicial backlash, especially as increased legitimacy may heighten the risks associated with such backlashes.159 In reducing the unpredictability of barriers faced and increasing CL’s legitimacy, a list allows CLs to be issued for diseases relevant to developing countries in a less controversial manner, with the result that countries need rely to a lesser extent on political grit or manufacturing capacity160 and can prioritise medical need when deciding whether to issue CLs. A second benefit, linked to the increased certainty engendered by a list, relates to its role in reducing the number of TRIPS-plus measures. Such measures tend to be found within bilateral trade agreements, often imposed by the USA161 and require higher standards than those under TRIPS,162 especially for public health,163 through CL restrictions for example.164 The key challenge as regards TRIPS-plus measures is that many developing countries oppose them;165 yet, being the weaker party in bilateral negotiations, those countries may accept them in return for trade privileges.166 This has led to a situation, described as “worrying” by the UN,167 whereby certain countries cannot rely on the entirety of TRIPS’ flexibilities,168 restricting their options when faced with medical challenges. This also weakens their negotiating position outside of the CL context, by taking away an important bargaining chip, which strongly undermines TRIPS and Doha.169 A list, by facilitating risk management and decreasing uncertainty for pharmaceutical companies, should reduce the need for TRIPS-plus measures somewhat, although certain measures would continue, due to underlying justifications beyond uncertainty. A list can further help in this respect, as it integrates a disease restraint into TRIPS, albeit to increase access, whose existence could render the imposition of further restraints under TRIPS-plus seem unacceptable, generating public controversy, which in the past has made the USA reconsider.170 Therefore, integrating a list of eligible diseases into TRIPS can reduce the frequency of TRIPS-plus measures therefore, by minimising the need for them and providing developing countries with greater moral high ground in negotiating. Thirdly, a list facilitates the process for issuing CLs, which is currently timeconsuming and expensive, partially due to lengthy deliberations pre-issuing and intraTRIPS challenges post-issuing.171 A list alone cannot resolve the entirety of these problems. For example, legal challenges within an overburdened judicial system take time to be resolved.172 However, by increasing the legitimacy surrounding eligible 158

DeRoo (n 48) 394; Feldman (n 26) 165. See Bird (n 7) 215. 160 Ramani and Urias (n 15) 76; Burton-Macleod (n 30) 423. 161 Baker (n 1) 529; Owen (n 16) 289, 295. 162 Carsten Fink and Patrick Reichenmillern, ‘Tightening TRIPS: Intellectual Property Provisions of Recent US Free Trade Agreements’ (Trade Note, The World Bank Group International Trade Department 2005) 1-2, 5-6. 163 David Vivas-Eugui, ‘A Shift in Intellectual Property Policy in US FTAs?’ (2007) 11 Bridges 15, 15 164 Harris (n 24) 374; Mandrescu (n 19) 167; Kerry and Lee (n 5) 1, 5, 6, 9. 165 Kerry and Lee (n 5) 7. 166 ibid 4. 167 Harris (n 24) 392. 168 See eg Thai-US FTA (never concluded): Kuanpoth (n 36) 67. 169 Vivas-Eugui (n 163) 15. 170 Bird (n 7) 215. 171 Owoeye (n 20) 788; Coriat and Orsenigo (n 4) 234 . 172 Cecilia Oh, ‘Compulsory Licenses: Recent Experiences in Developing Countries’ (2006) 1 International Journal of Intellectual Property Management 22, 32. 159

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diseases, a list firstly reduces governments’ deliberation time, as the presumption of legitimacy minimises diplomatic and political considerations.173 Moreover, by clarifying the acceptable basis disease-wise for CLs, a list simplifies and likely reduces legal challenges on this basis,174 speeding up the process and ensuring drugs reach their intended recipients quicker.175 This remains a secondary benefit, as if countries do not issue CLs, the latter procedures become superfluous. Nonetheless, by acting simultaneously on access and procedures, a list enables more medicine to reach those in need faster. A final argument in favour is that if TRIPS’ criteria are to be changed, this should be done in a democratic forum rather that through a de facto list. Indeed, intellectual property rights have gradually become politicised, due to their growing economic importance176 and, as such, should be determined in a democratic forum for all interests to be expressed.177 Moreover, countries should have regard to treaties as ratified and not impose their own standards.178 Indeed, the current situation is undemocratic precisely because the criteria developing countries are subject to are both different from those approved under TRIPS and imposed unilaterally through global power imbalances.179 A list would ameliorate this situation in two ways. Firstly, the de facto list applies in direct opposition to what was agreed, namely that CL should not be limited in terms of diseases.180 By negotiating in a democratic environment, all opinions may be heard and there is the possibility of reaching a new compromise which will not subsequently be undermined. It could be argued that the structural power imbalances developing countries face apply regardless of the forum,181 which then becomes irrelevant, as developed countries impose their preferences notwithstanding if TRIPS was agreed within a democratic forum.182 In response, this essay posits that developing countries have greater opportunities in a democratic forum to unite into a stronger bargaining position than in bilateral situations.183 Thus, whilst TRIPS mandates drug patents, it includes CL as a counterpart.184 Moreover, by renegotiating in a democratic forum, countries have the opportunity to participate in creating the global framework, rather than suffering unilaterally imposed conditions. Secondly, as with Doha, renegotiating and clarifying Article 31 in a democratic forum sends the message that the TRIPS flexibilities are not working for developing counties,185 which although in itself cannot guarantee change, does draw attention to the problem, generating conversation, controversy and potentially improvements in the long run. This area of the law is controversial and, because of the importance of the interests at stake and as a result, no solution is perfect. Accordingly, this section will highlight three criticisms and discuss to what extent they are valid.

173

Kim (n 77). Ng-Loy (n 77) 626. 175 ibid 624. 176 Alikhan and Mashelkar (n 117) 207. 177 Kampf (n 72) 254. 178 Harris (n 24) 371. 179 Yu (n 133) 264. 180 Ng and Kohler (n 145) 145-6. 181 Yu (n 133) 264. 182 Bird, ‘Developing Nations and the Compulsory License’ (n 7) 210. 183 Kerry and Lee (n 5) 7; Bird and Cahoy (n 115) 318. 184 Ramani and Urias (n 15) 75. 185 Oh (n 172) 23. 174

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The first criticism perceives a list as being contrary to Doha in undermining the flexibilities186 won by developing countries.187 Previously proposed lists have consistently been seen as limiting and rejected accordingly.188 This worry remains despite the solution’s stated purpose being to supersede the current list, thus increasing access. This criticism does not focus on whether a solution increases access, but whether the message it sends in doing so is detrimental in undermining Doha’s rationale.189 Indeed, existing lists implementing positive measures, namely the 2003 decision,190 have been criticised for undermining Doha through excessive narrowness,191 thus in no way alleviating the above criticism. In responding, it is vital to establish which rationale risks being undermined. If the rationale is that CL should not be subject to legal limitations,192 the solution proposed does undermine it, as it narrows the legal grounds for CL. Although commendable on paper, this justification does not translate well into reality, as an absence of definitions renders Doha’s principals easy to undermine,193 as has arguably happened with the de facto list.194 A better underlying justification is the importance of increasing access to medicine,195 irrelevant of the means used.196 A list fits, rather than undermines, this rationale, by providing a means to increase access, albeit as part of a more holistic approach in subverting the traditional perception of lists.197 In this light, focus should not be on whether a solution is ‘win’ or ‘lose’ but whether it represents a workable compromise, to avoid the risk of being undermined post-implementation. Finally, concerns regarding implementation are valid, although ensuring varied participation can mitigate risks. For example,198 CL represents a challenging area and it remains difficult to predict how solutions, despite all best intentions, will function in practice, with Doha being an example of this subsequent discrepancy.199 A list which supports Doha’s arguably preferable rationale should nonetheless be implemented, despite the risk of inadequate translation, as this risk is outweighed by the distinct possibility of improving the status quo.200 The second criticism questions whether pharmaceutical incentives to undertake research and development (R&D) will be affected for listed diseases. Pharmaceutical

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Doha Declaration, arts 1, 4 and 5. See Kerry and Lee (n 5) 2. 188 Outterson (n 87) 1, 3, 6; Commission on Intellectual Property Rights, Innovation and Public Health, ‘Public Health: Innovation and Intellectual Property Rights’ (WHO 2006) 189 Outterson, (n 31); Oh (n 173) 23. 190 Decision of the General Council of 30 August 2003: Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (WT/L/540, WTO 1 September 2003) <https://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htm#asterisk> accessed 26 November 2015. 191 Ng and Kohler (n 145) 154-5, 166; Outterson, (n 31) 192 Burton-Macleod (n 30) 416. 193 Kerry and Lee (n 5) 7. 194 Horace Anderson, ‘We Can Work It Out: Co-operative Compulsory Licensing as the Way Forward in Improving Access to Anti-Retroviral Drugs’ (2010) 16 Boston University Journal of Science and Technology Law 167, 168–169. 195 Doha Declaration, arts 1, 2 and 4. 196 Feldman (n 26) 148; Outterson (n 87) 6. 197 Kampf (n 72) 255. 198 ibid 254. 199 Brook Baker, ‘Arthritic Flexibilities for Accessing Medicines: Analysis of WTO Action Regarding Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health’ (2004) 14 Indiana International & Comparative Law Review 613, 630-2. 200 Harris (n 24) 397. 187

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companies have highly vested interests, due to the cost and risk of R&D,201 in obtaining a guaranteed return on investment for drugs making it to market.202 Patent induced monopolies are integral to this business model203 and CL depriving companies of this monopoly,204 even in return for compensation,205 explains their stance as to CL undermining their incentive to innovate.206 The risk in having a list is that companies will be deterred from future R&D for listed drugs or innovating for eligible diseases, to avoid the risk of CLs.207 In this respect, that the evidence regarding the relationship between CL and innovation is mostly inconclusive208 is largely irrelevant, as pharmaceutical companies perceive patents as integral and will act accordingly.209 There are two aspects to consider in responding to this concern. Firstly, very little funding currently exists210 for diseases overwhelmingly affecting developing countries,211 with 90% of R&D targeting the 10% of the global disease burden212 primarily affecting developed countries.213 This occurs because the developing world does not provide a sufficiently wealthy market to incentivise R&D214 and such a small percentage215 would arguably be affected for neither the better nor the worse by a list, especially as the CL risk may already have been taken into account. Some argue, despite this weak incentive, that all barriers to innovation should be removed.216 However, in respect of a list, the benefits outweigh such incentive loss. Secondly, the convergence between “diseases of affluence and poverty”217 necessitates also having regard to incentives for the former, which comprise the majority of R&D,218 thus having a higher chance of being affected incentive-wise. 201

Ho (n 13) 5, 7; Jean Lanjouw, ‘Patents, Price Controls and Access to New Drugs: How Policy Affects Global Market Entry’ (2005) National Bureau of Economic Research Working Paper 11321, 1 <http://www.nber.org/papers/w11321.pdf> accessed 25 January 2016; Epstein and Kieff (n 31) 78. 202 Oliveira and others (n 28) 818-9. 203 Owen (n 16) 289; Williams (n 2) 132. 204 Bird and Cahoy (n 115) 284. 205 Owoeye (n 20) 790. 206 Lybecker and Fowler (n 17) 225. 207 Daniel Cahoy, ‘Breaking Patents’ (n 66) 476; Ravvin (n 18) 115; Feldman (n 26) 142. 208 Goyal (n 18) 438-9, 455; Coriat and Orsenigo (n 4) 223. 209 Fred Hassan, ‘Fueling Innovation: To Be Our Best for a Better World’ (US Chambers of Commerce 5th Annual Intellectual Property Summit, Washington DC, October 2008); Martin Adelman, ‘Compulsory Licensing of Drugs: TRIPS Context’ (ATRIP Annual Meeting, Tokyo, August 2003) 210 Aidan Hollis, ‘An Efficient Reward System for Pharmaceutical Innovation’ (Submission to the Commission on Intellectual Property Rights, Innovation and Public Health, CIPIH 2004); WHO: Intergovernmental Working Group on Public Health, Innovation and Intellectual Property, ‘Draft Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property: Mapping the Funding for Research and Development for Neglected Diseases’ (The Resumed Second Session of the Intergovernmental Working Group on Public Health, Innovation and Intellectual Property, Geneva, April 2007) 3, 6. 211 See ‘Defining Disease Types I, II and III’ (WHO 2012) < http://www.who.int/phi/3background_cewg_agenda _item5_disease_types_final.pdf> accessed 2 January 2012. 212 Kerry and Lee (n 5) 5. 213 OECD Health Policy Studies, ‘Pharmaceutical Pricing Policies in a Global Market’ (OECD Publishing 2008) 58; Alessandro Rosiello and James Smith, ‘A Sociological Economy of HIV/AIDS Vaccine Partnerships: Case Studies from Africa and India’ (2008) 18 International Review of Sociology 283, 284. 214 Ravvin (n 18) 110. 215 Patrice Trouiller and others, ‘Drug Development for Neglected Diseases: A Deficient Market and a Public Health Policy Failure’ (2002) 359 Lancet 2188, 2188. 216 Lybecker and Fowler (n 17) 232. 217 Outterson (n 87) 11. 218 Ravvin (n 18) 112.

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However, even if present on the list, R&D incentives for such drugs should be not affected, providing sufficient markets exist as inducements to innovate.219 These are fulfilled by developed markets220 and the wealthy elite of developing nations,221 who are shown to be amply sufficient. Taking HPV as an example, the fraction of women affected in developed, as compared to developing, countries was sufficient incentive to bring a vaccine to market.222 Developing markets should thus be seen as bonuses223 and their needs resulting in the presence of relevant listed drugs should have little impact, especially as the financial impact of such CLs is often small.224 The sole caveat concerns drugs with global applicability but requiring modification for use in developing countries, for example, non-refrigerated vaccines,225 which, if listed, may prove problematic in reducing R&D incentives for adaptation.226 Notwithstanding this caveat, a list does not threaten R&D incentives, as one market represents so insignificant an incentive as to not be affected by a list, whilst the other’s primary markets are so significant as to also be unaffected. The final criticism centers on the relative youth of TRIPS as an international instrument227 and argues it should be given more time to develop without undue interference, which could otherwise prove detrimental. This argument points to HIV/AIDS CLs originally being very controversial,228 before becoming more accepted and argue that given enough time, this will happen for other diseases. Nevertheless, that this happened to a certain extent for HIV/AIDS is no guarantee for other diseases. The HIV/AIDS epidemic was prominent at the time CL came to the fore,229 allowing South Africa to easily harness strong moral arguments in defending its CL legislation and succeeding230 and there is no guarantee of similar circumstances for other diseases. Indeed, it was expected that CLs would have already extended beyond the HIV/AIDS context,231 and that this has barely happened is a strong indicator that change is needed. Finally, although international treaties should be given time to develop, in this context, it will take many more CLs to establish an acceptable framework232 and the cost of waiting being measured in lives233 makes this

219

Ho (n 13) 97. Margaret Kyle and Anita McGahan, ‘Investments in Pharmaceuticals Before and After TRIPS’ (2012) 94 The Review of Economics and Statistics 1157, 1161; Feroz Ali, ‘The Problem of the Bargaining Rich: Compulsory Licensing in Developing Markets’ (2016) 4-5 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2725840> accessed 02 February 2016. 221 Lanjouw (n 201) 6, 39; Williams (n 2) 132. 222 Outterson, (n 31). 223 Jerome Reichman and Catherine Hasenzahl, ‘Non-Voluntary Licensing of Patented Inventions: Historical Perspective, Legal Framework Under TRIPS and an Overview of the Practice in Canada and the United States of America’ (UNCTAD-ICTSD Project on IPRs and Sustainable Development, UNCTAD-ICTSD 2003) 6; Bird, ‘Developing Nations and the Compulsory License’ (n 7) 211. 224 Ho (n 13) 153. 225 Michael Kremer, ‘Pharmaceuticals and the Developing World’ (2002) 16 The Journal of Economic Perspectives 67, 69; Outterson, ‘Disease-Based Limitations on Compulsory Licenses Under Articles 31 and 31bis’ (n 87) 16. 226 Rosiello and Smith (n 214) 284. 227 Harris (n 24) 400. 228 Bird, ‘Developing Nations and the Compulsory License’ (n 7) 212. 229 Oh (n 172) 23; Mandrescu (n 19) 169. 230 Mandrescu (n 19) 176. 231 Beall and Kuhn (n 17) 2. 232 Burton-Macleod (n 30) 423. 220

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too high a price to pay. The moral imperatives for improving the status quo cannot therefore be ignored and the deaths preceding the increased legitimization of HIV/AIDS CLs should in no way be a prerequisite for the effective and easy reliance on a legally binding provision. 5. CONCLUSION Beginning from the assumption that CL is integral to TRIPS, it may at first appear counter-productive to propose a list of eligible diseases as a means of increasing access, given past reactions.234 Nonetheless, this paper has attempted to demonstrate that when approaching the problem from a different angle, a list may provide a valuable tool for improving the effective use of CL, thus increasing access to medicine in the developing world. Integral to this solution is the interpretation of the status quo, which explains the unpredictability of supra-legal barriers through a de facto list comprising predominantly HIV/AIDS medication and severe sanctions for deviation from eligible drugs. This limited status quo is highly problematic in creating both legal uncertainty and a distinct double standard, and provides the rationale for a list as a solution, so long as it is carefully framed to balance increasing certainty with avoiding a ‘list within a list’. Moreover, such a solution is not posited as a theoretical possibility but as a workable compromise able to be integrated within the TRIPS framework,235 due to its provision of increased access for developing countries through greater legitimacy, certainty and a reduction in TRIPS-plus measures, whilst simultaneously avoiding substantially decreased incentives for pharmaceutical companies or undermining Doha’s key principals. This workability is vital, as although TRIPS is a relatively recent treaty, the cost of inaction in this sector being measured in lives creates a powerful moral imperative to find a workable solution rapidly.236

233

Jillian Cohen-Kohler, ‘The Morally Uncomfortable Global Drug Gap’ (2007) 82 Clinical Pharmacology & Therapeutics 610, 610; Jillian Cohen and Patricia Illingworth, ‘The Dilemma of Intellectual Property Rights for Pharmaceuticals: The Tension Between Ensuring Access of the Poor to Medicines and Committing to International Agreements’ (2003) 3 Developing World Bioethics 27, 39. 234 Outterson, ‘Disease-Based Limitations on Compulsory Licenses Under Articles 31 and 31bis’ (n 87) 3, 9; Ellen Hoen, TRIPS, Pharmaceutical Patents and Access to Essential Medicines: Seattle, Doha and Beyond (WHO 2003) 60-1 <http://cdrwww.who.int/intellectual property/topics/ip/tHoen.pdf> accessed 20 January 2016. 235 Feldman (n 26) 142. 236 Paul Hunt, ‘Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines’ in UN General Assembly, Promotion and Protection of Human Rights: Human Rights Questions, Including Alternative Approaches for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms: The Right to Health (A/63/263, UN 2008) 15.

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45 BIBLIOGRAPHY

Sources Cited Books Alikhan S and Mashelkar R, Intellectual Property and Competitive Strategies in the 21st Century (Kluwer Law International 2004). Bainbridge D, Intellectual Property (9th edn, Pearson 2012) . Beldiman D, ‘Introduction’ in Beldiman D (ed), Access to Information and Knowledge: 21st Century Challenges in IP and Knowledge Governance (Edward Elgar Publishing 2013). Bently L and Sherman B, Intellectual Property Law (4th edn, OUP 2009). Burton-Macleod J, ‘Thai Compulsory Licenses Redefine Essential Medicines Debate’ in Pogge T, Rimmer M and Rubenstein K (eds), Incentives for Global Public Health: Patents Law and Access to Essential Medicines (CUP 2010). Cimoli M and others, ‘The Role of Intellectual Property Rights in Developing Countries: Some Conclusions’ in Cimoli M and others (eds), Intellectual Property Rights: Legal and Economic Challenges for Development (OUP 2014). Coriat B and Orsenigo L, ‘IPRs, Public Health and the Pharmaceutical Industry: Issues in the Post-2005 TRIPS Agenda’ in Cimoli M and others (eds), Intellectual Property Rights: Legal and Economic Challenges for Development (OUP 2014). Correa C, ‘The Use of Compulsory Licences in Latin America’ in Hilty R and Liu KC (eds), Compulsory Licensing: Practical Experiences and Ways Forward (Springer 2015). Geiger C, ‘Rethinking the Enforcement of Intellectual Property Rights at International Level’ in Beldiman D (ed), Access to Information and Knowledge: 21st Century Challenges in IP and Knowledge Governance (Edward Elgar Publishing 2013). Goyal Y, ‘Economic and Procedural Constraints of Compulsory Licences for Medicines’ in Hilty R and Liu KC (eds), Compulsory Licensing: Practical Experiences and Ways Forward (Springer 2015) Ho C, Access to Medicine in the Global Economy: International Agreements on Patents and Related Rights (OUP 2011). Kampf R, ‘From Data to Wisdom: The Contribution of Intellectual Property Rights to the Knowledge Pyramid’ in Beldiman D (ed), Access to Information and Knowledge: 21st Century Challenges in IP and Knowledge Governance (Edward Elgar Publishing 2013).

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Kuanpoth J, ‘Compulsory Licence: Law and Practice in Thailand’ in Hilty R and Liu KC (eds), Compulsory Licensing: Practical Experiences and Ways Forward (Springer 2015). Long D, ‘Deviant Globalisation and the Rise of Diverse Interests in the Multilateral Protection of Intellectual Property’ in Calboli I and Ragavan S (eds), Diversity in Intellectual Property: Identities, Interests and Intersections (CUP 2015). Plant A, ‘The Economic Theory Concerning Patents for Inventions’ in Vaver D (ed), Intellectual Property Rights: Critical Concepts of Law (Routledge 2006). Watal J, Intellectual Property Rights in the WTO and Developing Countries (Kluwer Law International 2001). Yu P, ‘The ACTA/TPP Country Clubs’ in Beldiman D (ed), Access to Information and Knowledge: 21st Century Challenges in IP and Knowledge Governance (Edward Elgar Publishing 2013) . Articles Anderson H, ‘We Can Work It Out: Co-operative Compulsory Licensing as the Way Forward in Improving Access to Anti-Retroviral Drugs’ (2010) 16 JOSTL 167. Attaran A, ‘How Do Patents and Economic Policies Affect Access to Essential Medicines in Developing Countries?’ (2004) 23 Health Affairs 155. Baetens F, ‘Book Review of Human Rights and the WTO: The Case of Patents and Access to Medicines by Holger Hestermeyer’ (2009) 58 ICLQ 747. Baker B, ‘Arthritic Flexibilities for Accessing Medicines: Analysis of WTO Action Regarding Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health’ (2004) 14 Ind Int’l & Comp L Rev 613. Baker B, ‘Patents, Pricing and Access to Essential Medicines in Developing Countries’ (2009) 11 AMA Journal of Ethics 527. Bartelt S, ‘Compulsory Licences Pursuant to TRIPS Article 31 in the Light of the Doha Declaration on the TRIPS Agreement and Public Health’ (2003) 6 JWIP 283. Beall R and Kuhn R, ‘The Time for Pharmaceutical Compulsory Licensing Has Expired’ (2012) 18 Nat Med 1168. Beall R and Kuhn R, ‘Trends in Compulsory Licensing of Pharmaceuticals Since the Doha Declaration: A Database Analysis’ (2012) 9 PLOS Medicine 1. Bird R, ‘Developing Nations and the Compulsory License: Maximising Access to Essential Medicines While Minimizing Investment Side Effects’ (2009) 37 J Law Med Ethics 209.

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Bird R and Cahoy D, ‘The Impact of Compulsory Licensing on Foreign Direct Investment: A Collective Bargaining Approach’ (2008) 45 Am Bus L J 283. Boutayeb A, ‘The Double Burden of Communicable and Non-Communicable Diseases in Developing Countries’ (2006) 11 T Roy Soc Trop Med H 191. Cahoy D, ‘Breaking Patents’ (2011) 32 Mich J Int’l L 461. Cohen-Kohler J, ‘The Morally Uncomfortable Global Drug Gap’ (2007) 82(5) Clinical Pharmacology & Therapeutics 610. Cohen J and Illingworth P, ‘The Dilemma of Intellectual Property Rights for Pharmaceuticals: The Tension Between Ensuring Access of the Poor to Medicines and Committing to International Agreements’ (2003) 3 Developing World Bioethics 27. DeRoo P, ‘“Public Non-Commercial Use” Compulsory Licensing for Pharmaceutical Drugs in Government Health Care Programs’ (2011) 32 Mich J Int’l L 347. Epstein R and Kieff FS, ‘Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents’ (2011) 78 U Chi L Rev 71. Feldman J, ‘Compulsory Licenses: The Dangers Behind the Current Practice’ (2009) 8 JIBL 137. Forman L, ‘From TRIPS-Plus? Exploring Right to Health Impact Assessment of Trade-Related Intellectual Property Rights Through the Thai Experience’ (2012) 7 Asian J WTO & Int’l Health L & Pol’y 347. Gaziano T and others, ‘Growing Epidemic of Coronary Heart Disease in Low- and Middle-Income Countries’ (2010) 35 Current Problems in Cardiology 72. Gold ER and others, ‘Are Patents Impeding Medical Care and Innovation?’ (2009) 7 PLOS Medicine 1. Harris D, ‘TRIPS After Fifteen Years: Success or Failure, as Measured by Compulsory Licensing’ (2011) 18 J Intell Prop L 367. Kerry V and Lee K, ‘TRIPS, the Doha Declaration and Paragraph 6 Decision: What Are the Remaining Steps for Protecting Access to Medicines?’ (2007) 3(3) Globalization and Health 1. Kremer M, ‘Pharmaceuticals and the Developing World’ (2002) 16 The Journal of Economic Perspectives 67. Kyle M and McGahan A, ‘Investments in Pharmaceuticals Before and After TRIPS’ (2012) 94(4) The Review of Economics and Statistics 1157. Laing R and others, ‘25 Years of the WHO Essential Medicines Lists: Progress and Challenges’ (2003) 361 Lancet 1723.

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Liu W, ‘Approaches to Ensuring Access to Pharmaceuticals Under the New China’s Patent Law’ (2010) 15 Journal of Intellectual Property Rights 228. Lybecker K and Fowler E, ‘Compulsory Licensing in Canada and Thailand: Comparing Regimes to Ensure Legitimate Use of the WTO Rules’ (2009) 37 J Law Med Ethics 222. Mandrescu D, ‘Compulsory Licensing - Between Health and Competition: Using Competition Law Policy to Promote Access to Medicine’ (2015) 8 GCLR 167. Mesidor M, ‘Intellectual Property Rights in Competition Law: Compulsory License Issues in Developing Countries’ (2014) 128 Revista da ABPI 17. Ng E and Kohler J, ‘Finding Flaws: The Limitations of Compulsory Licensing for Improving Access to Medicines - An International Comparison’ (2008) 16 Health L J 143. Ng-Loy WL, ‘Book Review of Compulsory Licensing: Practical Experiences and Ways Forward’ (2015) 46 IIC 624. Oh C, ‘Compulsory Licenses: Recent Experiences in Developing Countries’ (2006) 1 IJIPM 22. Oliveira M and others, ‘Has the Implementation of the TRIPS Agreement in Latin America and the Caribbean Produced Intellectual Property Legislation that Favours Public Health?’ (2004) 82 Bull World Health Organ 815. Outterson K, ‘Should Access to Medicines and TRIPS Flexibilities Be Limited to Specific Diseases?’ (2008) 34 AJLM 317. Owen T, ‘The 'Access to Medicines' Campaign vs Big Pharma: Counter-Hegemonic Discourse Change and the Political Economy of HIV/AIDS Medicines’ (2014) 11(3) Critical Discourse Studies 288. Owoeye O, ‘International Patents Law and Public Health: Revisiting the TRIPS Compulsory Licensing Regime and the Doha Paragraph 6 System’ (2015) 37(12) EIPR 782. Quadir R, ‘Patent Stalemate? The WTO’s Essential Medicines Impasse Between Pharmas and Least Developed Countries’ (2009) 61 Rutgers L Rev 437. Ramani S and Urias E, ‘Access to Critical Medicines: When Are Compulsory Licenses Effective in Price Negotiations?’ (2015) 135 Soc Sci Med 75. Ravvin M, ‘Incentivising Access and Innovation for Essential Medicines: A Survey of the Problem and Proposed Solutions’ (2008) 1 Public Health Ethics 110.

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Rosiello A and Smith J, ‘A Sociological Economy of HIV/AIDS Vaccine Partnerships: Case Studies from Africa and India’ (2008) 18 International Review of Sociology 283. Sell S, ‘Book Review of Human Rights and the WTO: The Case of Patents and Access to Medicines by Holger Hestermeyer’ (2008) 7 WTR 584. Suwan-in N, ‘Compulsory Licensing - A Long Debate on TRIPS Agreement Interpretation: Discovering the Truth of Thailand’s Imposition on Pharmaceutical Patents’ (2012) 7 Asian J WTO & Int’l Health L & Pol’y 225. Trouiller P and others, ‘Drug Development for Neglected Diseases: A Deficient Market and a Public Health Policy Failure’ (2002) 359 Lancet 2188. Vivas-Eugui D, ‘A Shift in Intellectual Property Policy in US FTAs?’ (2007) 11 Bridges 15. Williams O, ‘Access to Medicines, Market Failure and Market Intervention: A Tale of Two Regimes’ (2012) 7(2) Global Public Health 127. Wu CF, ‘Transnational Pharmaceutical Corporations’ Legal and Moral Human Rights Responsibilities in Relation to Access to Medicines’ (2012) 7 Asian J WTO & Int’l Health L & Pol’y 77. Working Papers Ali F, ‘The Problem of the Bargaining Rich: Compulsory Licensing in Developing Markets’ (2016) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=27 25840>. Epstein R and Kieff FS, ‘Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents’ (2010) John M Olin Program in Law and Economics Working Paper <http://chicagounbound.uchicago.edu/cgi/viewcontent. cgi?article=1403&context=law_and_economics> accessed 12 December 2015. Lanjouw J, ‘Patents, Price Controls and Access to New Drugs: How Policy Affects Global Market Entry’ (2005) National Bureau of Economic Research Working Paper 11321 <http://www.nber.org/papers/w11321.pdf> accessed 25 January 2016. Love J, ‘Recent Examples of the Use of Compulsory Licenses on Patents’ (Research Note 2, Knowledge Ecology International 2007). Outterson K, ‘Disease-Based Limitations on Compulsory Licenses Under Articles 31 and 31bis’ (2009) Boston University School of Law Working Paper 09/26 <http://www.bu.edu/law/workingpapers-archive/documents/outtersonk052009.pdf> accessed 29 November 2015. Policy Documents Adelman M, ‘Compulsory Licensing of Drugs: TRIPS Context’ (ATRIP Annual Meeting, Tokyo, August 2003).

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Cameron A and others, The World Medicines Situation 2011: Medicine Prices, Availability and Affordability (3rd edn, WHO 2011). Commission on Intellectual Property Rights, Innovation and Public Health, ‘Public Health: Innovation and Intellectual Property Rights’ (WHO 2006). Committee to Review and Examine the Establishment of Thailand-United States Free Trade Area and others, ‘Report on Result of the Examination of Human Rights Violations’ (2006). ‘Common Working Paper of the EC, Hungary, Japan, Korea, Switzerland, and Turkey to the Seattle Ministerial Declaration’ (29 November 1999) <http://www.jmcti.org/ 2000round/common01.pdf> accessed 10 January 2016. Council for Trade-Related Aspects of Intellectual Property Rights, ‘Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health: Communication from the United States’ (IP/C/W/340, WTO 2002). ‘Defining Disease Types I, II and III’ (Background document provided by the WHO Secretariat, WHO 2012) <http://www.who.int/phi/3-background_cewg_agenda_ item5_disease_types_final.pdf> accessed 2 January 2012. Fink C and Reichenmillern P, ‘Tightening TRIPS: Intellectual Property Provisions of Recent US Free Trade Agreements’ (Trade Note, The World Bank Group International Trade Department 2005). Hassan F, ‘Fueling Innovation: To Be Our Best for a Better World’ (US Chambers of Commerce 5th Annual Intellectual Property Summit, Washington DC, October 2008). Hoen E, TRIPS, ‘Pharmaceutical Patents and Access to Essential Medicines: Seattle, Doha and Beyond’ (WHO 2003) <http://cdrwww.who.int/intellectualproperty/topics /ip/tHoen.pdf> accessed 20 January 2016 . Hollis A, ‘An Efficient Reward System for Pharmaceutical Innovation’ (Submission to the Commission on Intellectual Property Rights, Innovation and Public Health, CIPIH 2004). Hunt P, ‘Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines’ in UN General Assembly, ‘Promotion and Protection of Human Rights: Human Rights Questions, Including Alternative Approaches for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms: The Right to Health’ (A/63/263, UN 2008). Kim DH, ‘Research Guide on TRIPS and Compulsory Licensing: Access to Innovative Pharmaceuticals for Least Developed Countries’ [2007] GlobaLex <http://www.nyulawglobal.org/globalex/TRIPS_Compulsory_Licensing.html#_ III._Current_Topics_Under TRIPS> accessed 3 December 2015.

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Mattke S and others, Improving Access to Medicines for Non-Communicable Diseases in the Developing World (RAND Corporation 2011). ‘Multilateral Trade Negotiations The Uruguay Round: Meeting of Negotiating Group of 12-14 July 1989’ (MTN.GNG/NG11/14, September 1989). Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, ‘Meeting of Negotiating Group of 11, 12 and 14 December 1989’ (MTN.GNG/NG11/17, January 1990). OECD Health Policy Studies, Pharmaceutical Pricing Policies in a Global Market (OECD Publishing 2008). Reichman J and Hasenzahl C, ‘Non-Voluntary Licensing of Patented Inventions: Historical Perspective, Legal Framework Under TRIPS and an Overview of the Practice in Canada and the United States of America’ (UNCTAD-ICTSD Project on IPRs and Sustainable Development, UNCTAD-ICTSD 2003). Revenga A and others, ‘The Economics of Effective AIDS Treatment: Evaluating Policy Options for Thailand’ (The World Bank 2006). UN Economic and Social Council: Sub-Commissioner on the Promotion and Protection of Human Rights, ‘Economic, Social and Cultural Rights: The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights’ (E/CN.4/Sub.2/2001/13, Office of the UN High Commissioner for Human Rights 2001). US Congress Office of Technology Assessment, ‘Intellectual Property Rights in an Age of Electronics and Information’ (OTA-CIT 302, US Government Printing Office 1986). WHO: Intergovernmental Working Group on Public Health, Innovation and Intellectual Property, ‘Draft Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property: Mapping the Funding for Research and Development for Neglected Diseases’ (The Resumed Second Session of the Intergovernmental Working Group on Public Health, Innovation and Intellectual Property, Geneva, April 2007). WHO: Intergovernmental Working Group on Public Health, Innovation and Intellectual Property, ‘Draft Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property: Progress to Date in Drafting Groups A and B’ (The Resumed Second Session of the Intergovernmental Working Group on Public Health, Innovation and Intellectual Property, Geneva, April 2007) . World Health Organisation, WHO Model List of Essential Medicines (19th edn, WHO 2015).

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Newspaper Articles Editorial, ‘Bangkok’s Drug War Goes Global’ Wall Street Journal (New York, 7 March 2007) <http://www.wsj.com/articles/SB117322181443628799> accessed 2 January 2016. Editorial, ‘Drugs in Thailand’ Financial Times (London, 31 January 2007) <http://www.ft.com/cms/s/0/37500f5c-b0cf-11db-8a62-0000779e2340.html#axzz 42WU00xr5> accessed 17 December 2015. Pontin J, ‘Q&A: Bill Gates’ MIT Technology Review (Washington, 24 August 2010) <http://www.technologyreview.com/article/420345/qa-bill-gates> accessed 2 January 2016 . Schuettler D, ‘Angered US Firm Excludes Thailand From New Drugs’ Reuters (Bangkok, 14 March 2007) <http://www.reuters.com/ article/idUSBKK277146> accessed 12 January 2016. Vaughan M, ‘In Clash with Activists, Critics Charge Thailand Violation of Trade Rules’ Intellectual Property Watch (19 March 2007) <http://www.ip-watch.org/2007/ 03/19/in-clash-with-activists-critics-charge-thailand-violation-of-trade-rules/> accessed 16 December 2015. Websites World Health Organisation, ‘The Top 10 Causes of Death: Major Causes of Death’ <http://www.who.int/mediacentre/factsheets/fs310/en/index2.html>. World Health Organisation, ‘The Top 10 Causes of Death: The 10 Leading Causes of Death by Country Income Group (2012)’ <http://www.who.int/mediacentre/factsheets /fs310/en/index1.html> accessed 13 December 2015. National Legislation and International Agreements Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 299, 33 ILM 1197 (TRIPS Agreement). Constituição Federal de 1988 (Brazil). Constitution of the Kingdom of Thailand (2007). Constitution of the Republic of South Africa Act No 108 of 1996. Decision of the General Council of 30 August 2003: Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (1 September 2003) WT/L/540 <https://www.wto.org/english/tratop_e/trips_e/implem_para6_e. htm#asterisk>.

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Declaration on the TRIPS Agreement and Public Health (20 November 2001) WT/MIN(01)/DEC/2 (Doha Declaration) <https://www.wto.org/English/thewto_e/ minist_e/min01_e/mindecl_trips_e.pdf>. 28 US Code §1498. Other Sources Consulted Elkin-Koren N and Salzberger E, The Law and Economics of Intellectual Property in the Digital Ages (Routledge 2013). Ellyne E, ‘Patent Eligibility: The ‘Sick-Man’ of Patent Law’ in Beldiman D (ed), Access to Information and Knowledge: 21st Century Challenges in IP and Knowledge Governance (Edward Elgar Publishing 2013). Francisco M, ‘Compulsory License Bandwagon Gains Momentum’ (2012) 30 Nature Biotechnology 814. Gathii J, ‘The Legal Status of the Doha Declaration on TRIPS and Public Health Under the Vienna Convention on the Law of Treaties’ (2002) 15 Hard J L & Tech 291. ‘India Grants First Compulsory License to Generic Drug Producer’ (2012) 16(1) Bridges 6. Nisen M, ‘The 10 Best Selling Prescription Drugs in the United States’ Business Insider (New York, 28 June 2012 ) < http://www.businessinsider.com/10-best-sellingblockbuster-drugs-2012-6?op=1&IR=T>. Rozek R, ‘The Effects of Compulsory Licensing on Innovation and Access to Health Care’ (2000) 3 JWIP 889. Stazi A and Marzetti M, ‘Synergetic Interaction Between Intellectual Property and Consumer Protection: A Pragmatic Proposal to Rebalance Incentives and Access’ in Beldiman D (ed), Access to Information and Knowledge: 21st Century Challenges in IP and Knowledge Governance (Edward Elgar Publishing 2013). The Ministry of Public Health and the National Health Security Office Thailand, Facts and Evidences on the 10 Burning Issues Related to the Government Use of Patents on Three Patented Essential Drugs in Thailand: Document to Support Strengthening of Social Wisdom on the Issue of Drug Patent (Sangsue Co 2007).

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THE CRISIS IN CRIMEA: DOES THE 2014 MILITARY INTERVENTION IN AND SUBSEQUENT ANNEXATION OF CRIMEA BY THE RUSSIAN FEDERATION CONSTITUTE A VIOLATION OF THE PROHIBITION ON THE USE OF FORCE ENSHRINED WITHIN ARTICLE 2(4) OF THE UN CHARTER? Dominic Dickinson In February and March 2014, Ukraine underwent a process of governmental transition, which was followed by a military intervention by the Russian Federation in Crimea. A referendum was subsequently conducted, with the result forming the basis upon which the Russian Federation annexed Crimea. This paper examines the legality of the military intervention and explores possible defences for the Russian Federation such as both the protection of Russian nationals abroad and the invitation by Viktor Yanukovych, the ousted Ukrainian President. The procedural validity of the Crimean referendum is further considered to assess whether it was legitimately used as a basis for annexation. It is concluded that Russian military intervention constitutes a violation of the prohibition on the use of force and neither legal defence justifies the use of armed force. Moreover, the invalidity of the referendum renders the annexation void, which is largely confirmed by international consensus. Keywords: Crimea, Russian Federation, Russia, Crisis, International law, United Nations, Conflict, Military, Ukraine 1. INTRODUCTION “The General Assembly… calls upon all States to desist and refrain from actions aimed at the partial or total disruption of the national unity and territorial integrity of Ukraine, including any attempts to modify Ukraine’s borders through the threat or use of force or other unlawful means” –UN General Assembly1 The international response to the military intervention within and subsequent annexation of the region of Crimea by the Russian Federation itself represented a significant international consensus. General Assembly Resolution 68/262 was passed with 100 votes in favour compared to 11 votes against the non-binding resolution and 58 abstentions2. The focus of this paper is whether the armed intervention and annexation can be viewed as lawful or whether it equates to a violation of “the central international legal rule against violence”3. To that end, the discussion initially features a consideration of the criteria for a violation of the prohibition on the use of force as well as the qualifications enshrined within the UN Charter of self-defence and UN Security Council authorisation. The focus then shifts towards the legal justifications that have been invoked by the Russian Federation to lawfully legitimate its military intervention. Although there has been a broad range of arguments that the Russian Federation has utilised, including 1

UN General Assembly, Territorial Integrity of Ukraine, (UN Doc A/RES/68/262, 2014b) 2. UN General Assembly, Prevention of armed conflict: (b) Strengthening the role of mediation in the peaceful settlement of disputes, conflict prevention and resolution, (UN Doc A/68/PV.80, 2014a) 17. 3 Nigel White and Christian Henderson, Research Handbook on International Conflict and Security Law: Jus ad Bellum, Jus in Bello and Jus Post Bellum (Edward Elgar Publishing 2013) 89. 2

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bilateral Black Sea Fleet agreements4 and concerns regarding regional stability,5 the central focus here revolves around their most potentially persuasive justifications. The first of these is the protection of nationals abroad. This is explored within the context of both self-defence and humanitarian intervention. The second rationale for military intervention, which remains extensively relied upon by the Russian Federation,6 is that the intervention was subject to Ukrainian invitation. Finally, this essay considers the Russian Federation’s annexation of the region of Crimea beyond military intervention, events which reached a climax with the municipal legislation on March 21, 2014.7 Whilst a detailed analysis of the Crimean referendum is outside the confines of this paper, the validity of the referendum provides an insight into the context within which the military intervention took place. Particularly, the paper examines the referendum validity through a human rights perspective to address not only whether the population of Crimea were freely able to conduct a referendum whilst under the conditions of effective control of an occupying power, but also whether the prerequisite “respect for human rights standards”8 was upheld. The final section of the paper, therefore, questions the legality of the holistic procedure of the annexation of Crimea, which includes the lawfulness of the initial military intervention, to establish whether or not Crimea remains within the territory of Ukraine. 2. THE GENERAL PROHIBITION Article 2(4) of the UN Charter, which has been proclaimed as “the cornerstone of the Charter system”9, provides that: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.10 Historically it follows the limited restrictions of the 1907 Hague Convention, the diplomatic restraints of the 1919 League of Nations Covenant and the extensive limitations on warfare as enshrined within the Kellogg-Briand Pact of 1928. The prohibition finds its deeper roots located within the historic Christian Just War Doctrine.11 Although the Christian commitment to “extreme pacifism”12 prevailed for 4

UN Security Council, Annex to the Letter dated 19 March 2014 from the Permanent Representative of the Russian Federation to the United Nations Addressed to the Secretary-General, (UN Doc A/68/803–S/2014/202, 2014a) 5. 5 ibid 9. 6 BBC, ‘Ukraine’s Yanukovych asked for troops, Russia tells UN’ (BBC 2014) <http://www.bbc.co.uk/news/world-europe-26427848> accessed 3 April 2017. 7 Official Internet Resources of the President of Russia, ‘Laws on admitting Crimea and Sevastopol to the Russian Federation’, (2014). < http://en.kremlin.ru/events/president/news/20625> accessed 4 April 2017. 8 Office of the High Commissioner for Human Rights, Annex to the ‘Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Ukraine’ entitled ‘Reports by the Office of the United Nations High Commissioner for Human Rights on the human rights situation in Ukraine from 15 April to 29 August 2014’, (UN Doc A/HRC/27/75, 2014) 20. 9 James Leslie Brierly, The Law of Nations: An Introduction to the International Law of Peace (Clarendon Press, Oxford, 1963) 414. 10 UN Charter, art 2(4). 11 Stephen Neff, War and the Law of Nations: A General History, (CUP 2005) 46. 12 Ian Brownlie, International Law and the Use of Force by States, (Clarendon Press, Oxford, 1963) 5.

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“three centuries after Christ”,13 pacifism was abandoned with the increasing spread of Christianity throughout the Roman Empire. St. Thomas Aquinas, building on the earlier work of St. Augustine of Hippo, which justified warfare through the ultimate aim of peace,14 provided a systemised model of the core conditions of a just war: it may only be waged by those with adequate authority on the basis of both a just cause and the correct intention of the sovereign.15 The development of the doctrine was influenced by the realpolitik ideas of Niccolo Machiavelli;16 the Spanish Scholastic thought of Francisco Vitoria;17 the concerns of Hugo Grotius regarding the idea of the “bellum justum ex utraque parte”;18 and the legal positivist arguments of Emmerich de Vattel. As positive law on the resort to war was significantly developed in the 19th and 20th centuries the doctrine clearly remained a salient feature of State practice.19 The prohibition is widely regarded not only as a “cornerstone”20 of treaty law but also as a rule of customary international law and a ius cogens.21 Although there have been frequent violations since its inception in 1945,22 which have convinced some that it is “dead”,23 most scholars accept the validity of the prohibition and that its authority remains intact even within customary international law.24 There are two noteworthy conditions to examine for our purposes which must be fulfilled for the use of force to constitute a violation of the prohibition. The first is that use of force has been interpreted, with authoritative evidence from the records of the UN Conference on International Organisation as meaning armed force or the equivalent. The second is that the use of armed force must be over and above a de minimis level of armed force. There is no express authority for this requirement unlike the former condition. Rather, it is based on State practice and the position of the ICJ in landmark cases, the initial one being the commentary within the Corfu Channel case in which the Court did not bring a British “violation of Albanian sovereignty”25 within the remit of Article 2(4). The ICJ proceeded to add substance to this minimum threshold, albeit within the selfdefence context of Article 51 of the UN Charter, in the Nicaragua case, in which the Court distinguished “the most grave forms of the use of force (those constituting an armed attack) from other less grave forms”.26 Once again, the stringent use of force threshold of Article 2(4) was avoided in favour of the principle of non-intervention.27 The ICJ has maintained a consistent “scale and effects” analysis of violent action in 13

ibid. Arthur Nussbaum, A Concise History of the Law of Nations, (Macmillan 1962) 35. 15 Wilhelm Grewe, The Epochs of International Law (Walter de Gruyter 2000) 109. 16 Brownlie (n 12). 17 Joachim von Elbe, ‘The Evolution of the Concept of the Just War in International Law’ (1939) 33 The American Journal of International Law 665-688, 674-675. 18 ibid 678. 19 von Elbe, (n 17). 20 Armed Activities on the Territory of Congo (Democratic Republic of the Congo v. Uganda) (Judgment) ICJ Reports (2005) 168, para 148. 21 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Judgment) ICJ Reports (1986) 14, para 190. 22 Mahmoud Cherif Bassiouni, The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimisation, and Post-Conflict Justice (Intersentia 2010) 11. 23 See Michael Glennon, ‘How International Rules Die’ (2005) 93 Georgetown Law Journal 939. 24 Louis Henkin, ‘The Reports of the Death of Article 2(4) Are Greatly Exaggerated’ (1971) 65 American Journal of International Law 544-548. 25 Corfu Channel Case (UK v. Albania) (Judgment) ICJ Reports (1949) 4, para 35. 26 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (n 21), paras 101103. 27 UN General Assembly, 1970. 14

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the Nicaragua case,28 the Oil Platforms case,29 the Wall advisory opinion30, and the DRC v. Uganda case.31 Therefore, that the first condition is sufficiently satisfied within the Crimean context by the nature of the armed intervention of the Russian Federation. Furthermore, it should be equally clear that the armed intervention fulfils the second requirement as Crimea is under effective control of the Russian Federation, with the occupation here involving the use of force against the “territorial integrity”32 of Ukraine, akin to the DRC v. Uganda case.33 The military intervention by the Russian Federation appears, therefore, to constitute a prima facie violation of the prohibition enshrined within Article 2(4) of the UN Charter. It is, however, true that “the prohibition against use or threat of force under international law is not absolute”.34 Rather, there are two qualifications enshrined within the UN Charter which may legally legitimate the use of force. Both the right of individual or collective self-defence for States as enshrined within Article 51 of the UN Charter and the right of the Security Council to “recommend or command military enforcement action as an ultimum remedium in case of a threat to the peace, breach of peace, or act of aggression”35 as enshrined within Chapter VII of the UN Charter. Both of these express exceptions to the prohibition are discussed individually to determine their contribution, if any, to the legal assessment of the Russian military intervention in Crimea. The UN Security Council authorisation model of “delegated enforcement action”36 derives from the “primary responsibility for the maintenance of international peace and security”37 of the security council, as affirmed in Article 24(1) of the UN Charter. Notwithstanding that the authorisation technique was never the intended modus operandi of the Security Council according to travaux préparatoires38 and the Charter system, the adoption by the Security Council of authorisation resolutions has become standard practice. Article 39 of the UN Charter provides that “the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression”39. Although the Security Council has complete discretion “to decide what constitutes a “threat to the peace”,40 which has caused some commentators to conclude that “a threat to the peace in the sense of Article 39 seems to be whatever the 28

Case Concerning Military and Paramilitary Activities in and Against Nicaragua (n 21), paras 103104. 29 Oil Platforms (Iran v. USA) (Judgment) ICJ Reports (2003) 161, para 191. 30 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports (2004) 136, para 195. 31 Armed Activities on the Territory of Congo (n 20) para 301. 32 UN Charter, art 2(4). 33 Armed Activities on the Territory of Congo (n 20), para 106. 34 Thomas Grant, ‘Annexation of Crimea’, 2015a (109(1) American Journal of International Law 68, 77. 35 Niels Blokker and Nico Schrijver, The Security Council and the Use of Force: Theory and Reality – A Need for Change? (Martinus Nijhoff Publishers 2005) 36. 36 Niels Blokker, ‘Is the Authorisation Authorised? Powers and Practice of the UN Security Council to Authorise the Use of Force by “Coalitions of the Able and Willing”’ 11 European Journal of International Law 541, 542. 37 UN Charter, art 24. 38 UN Secretary-General, ‘An Agenda for Peace, Preventive Diplomacy, Peacemaking and Peacekeeping’ (UN Doc A/47/277-S/24111, 1992) 42-43. 39 UN Charter, art 39. 40 Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (Stevens, 1950) 727.

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Security Council says is a threat to the peace”,41 this determination must necessarily be carried out before the Security Council may exercise its right enshrined within Article 42 of the UN Charter. Only then can they “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security”.42 For our purposes, however, Security Council authorisation provides absolutely no basis upon which the Russian Federation may legally justify its armed intervention. The right of self-defence for States as enshrined within Article 51, carries a greater importance than Security Council authorisation for the Crimean context. At the outset, it is beneficial to deconstruct the key elements of the doctrine of self-defence to provide a foundational point of reference against which the legal defence invoked by the Russian Federation may be assessed. According to Article 51, States have an “inherent”43 right of self-defence, which most logically locates the right within the State as the right-holder, yet it finds its theoretical roots within the right of selfpreservation.44 The UN Charter, therefore, was merely confirming the already existing right of individual self-defence, although Article 51 is frequently attributed with introducing the notion of “collective self-defence” into the ius ad bellum.45 Article 51, however, stipulates that this inherent right may only be successfully invoked if an armed attack occurs, the definition of which the ICJ has only explored in the Nicaragua case46, the Oil Platforms case47, and the DRC v. Uganda case.48 Yet it remains narrower than the threat or use of force in the sense of Article 2(4): the former only exists when the force is used on a relatively broad scale and has both sufficient severity and substantial effect.49 Moreover, the question of anticipatory selfdefence lacks a consensus, with the broad right of pre-emptive self-defence only finding the approval of some States.50 A prevailing contemporary opinion has, however, emerged which permits the extremely narrow right to anticipatory selfdefence, either on the basis of the Caroline formula or something narrower.51 The final element of Article 51 worth considering is the extent of State adherence to the principles of necessity and proportionality, to which any recourse to the right of selfdefence is subject as demonstrated by the jurisprudence of the ICJ.52 The qualification of self-defence, therefore, is extremely relevant to the Crimean context, as it 41

Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th edn, Routledge 1997) 426. 42 UN Charter, art 42. 43 Michael Glennon, ‘The Fog of Law: Self-Defence, Inherence, and Incoherence in Article 51 of the United Nations Charter’ (2002) 25 Harvard Journal of Law & Public Policy 539, 553-556. 44 Emmerich de Vattel, The Law of Nations (first published 1758, Indianapolis: Liberty Fund), Book III Ch 1 §4 and 35. 45 Kelsen (n 38) 918. 46 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (n 21) para 103104. 47 Oil Platforms (Iran v USA) (n 29), para 19. 48 Armed Activities on the Territory of Congo (n 20) para 301. 49 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (n 21), para 195; Oil Platforms (Iran v USA) (n 29), paras 51, 64 and 72. 50 Reisman and Armstrong, ‘The Past and Future of the Claim of Preemptive Self-Defense’ (Yale Law School Faculty Scholarship Series, Paper 957, 2006). 51 Gazzini, The Changing Rules on the Use of Force in International Law (Manchester University Press 2005) 151. 52 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (n 21), paras 194 and 237; Oil Platforms (Iran v. USA) (n 29), paras 43, 51 and 73-77; Armed Activities on the Territory of Congo (Democratic Republic of the Congo v. Uganda) (n 20), para 147; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Reports (1996) 226, para 41.

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constitutes one basis upon which the Russian Federation invoked as a legal justification for its military intervention. 3.

THE PROTECTION OF NATIONALS ABROAD

The chairperson of the Russian Council, Valentina Matviyenko, justified armed intervention on the grounds that “today there is a real threat to the life and security of Russian citizens living in Ukraine”.53 Furthermore, Russian President Vladimir Putin stated that Crimean residents of Russian ethnicity were “in distress” and that “those who opposed the coup in Maidan were immediately threatened with repression”.54 This legal justification is evaluated below from the two foundational perspectives upon which the protection of nationals abroad may possibly rest: self-defence or humanitarian reasons within customary international law55. It is concluded, however, that neither self-defence nor humanitarian principles provide an adequate premise upon which to launch a reasonable legal defence. The right of self-defence “principally requires an ongoing armed attack against a State or the threat of imminent attack”56 and this may not extent to nationals threatened abroad.57 In the Crimean context, neither within the Russian territory itself nor within close proximity was there any mobilisation of the Ukrainian military. While Article 3(d) of General Assembly Resolution 3314 illustrates that the concept of armed attack includes an extra-territorial element,58 commentators have stated that, “such an extensive interpretation of ‘armed attack’ would result in the blurring of any contours of the right of self-defence”.59 Indeed, the nationals of a State located abroad are not considered by most States to be “external positions”60 which may be the object of an armed attack. Rather, self-defence requires there to be an actual threat to the security or existence of a State, which is directed towards a State’s territory, positions or vessels abroad.61 Commentators have articulated potential conditions which would grant States the right to use force to protect their citizens abroad: There must be (1) an imminent threat of injury to nationals, (2) a failure or an inability on the part of the territorial sovereign to protect them and (3) measures of protection strictly confined to the object of protecting them against injury.62 Attempts to justify this rationale are underpinned by the notion that “an assault on its nationals abroad constitutes an attack against a State, because nationals form a part of 53

ITAR-TASS, ‘Putin’s Letter on Use of Russian Army in Ukraine Goes to Upper House’ (Russian news agency, Press Report, 2014) <http://tass.ru/en/russia/721586> accessed 16 March 2016. 54 UN Security Council (n 4). 55 Christian Marxsen, ‘The Crimea Crisis – An International Law Perspective’ (2014) 74 Heidelberg Journal of International Law 367, 372. 56 ibid. 57 Hanspeter Neuhold, Internationale Konflikte – Verbotene und erlaubte Mittel ihrer Austragung (Springer Publishing 1977) 146. 58 UN General Assembly, ‘Definition of Aggression’ (UN Doc A/RES/29/3314, 1974). 59 Georg Nolte and Albrecht Randelzhofer, ‘Article 51’ in Bruno Simma and others (eds) The Charter of the United Nations: A Commentary (3rd edition, OUP 2012) 28. 60 Michael Bothe, ‘Achter Abschnitt: Friedenssicherung und Kriegsrecht’ in Wolfgang Vitzthum (ed) Völkerrecht (5th edn, de Gruyter 2010); Christine Gray, ‘The Use of Force and the International Legal Order’ in Malcom Evans (ed), International Law (3rd edn OUP 2010). 61 Nolte and Randelzhofer (n 59) 58. 62 Claude Waldock, ‘The Regulation of the Use of Force by Individual State in International Law’ (Collective Courses of The Hague Academy of International Law, Vol 081, 1952) 467.

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a State’s population and are thus one of its essential constituents”.63 It is claimed, therefore, that “an attack of sufficient violence upon a substantial number of a State’s nationals”64 may amount to an armed attack against that State. Some have even suggested that it is justified “if the attack against [such] nationals is mounted primarily because of their link of nationality [to the attacked State]”65 whilst drawing upon an “impressive”66 amount of State practice supporting this view.67 The most relevant State practice relates to the intervention in Georgia by the Russian Federation to protect its nationals in which “western States did not oppose this doctrine as a matter of principle”68 and instead preferred to challenge “Russia’s motives and the proportionality of the Action”.69 Even whilst using this widest interpretation, it remains difficult to justify the military intervention in Crimea. Although any threats to Russian nationals in Crimea are contested between Western and Russian media, there is an apparent lack of official reports to conclude that those nationals have been threatened. Furthermore, the Russian Federation maintains that there was “a real threat to the lives and health of Russian citizens”.70 However, it fails to substantively articulate how those nationals were imperilled by the governmental upheaval which occurred in Ukraine in February 2014. Notwithstanding how the boundaries of statehood are demarcated for the purpose of self-defence, it is almost impossible for the Russian Federation to fall within the acceptable requirements of necessity and proportionality for the purposes of selfdefence,71 as its military intervention appears to have been highly offensive in the blockade of Ukrainian military bases72 before the eventual annexation of the region by the Russian Federation. Thomas Grant has additionally pointed out that “brief incursions or targeted strikes also differ materially from the introduction of long-term military and administrative control to the territory that the protected persons inhabit”.73 Both the stark disagreement over the necessity of the initial intervention, which must leave “no room for any “measure of discretion”74 for a successful invocation of self-defence, and the extensive scepticism towards the “primary repelling character”75 of Russian intervention, all but confirm the Russian Federation’s inability to rely on self-defence as a foundation for the protection of its nationals located within Crimea.

Nolte and Randelzhofer (n 59) 28. Greenwood, ‘Self-Defence’ (Max Planck Encyclopaedia of Public International Law, 2001) para 24 <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e401?prd=EPIL> accessed 3 April 2017. 65 Yoram Dinstein, War, Aggression and Self-Defence (5th edn, CUP 2011) 218. 66 Daniel Wisehart, The Crisis in Ukraine and the Prohibition of the Use of Force: A legal Basis for Russia’s Intervention? (EJIL: TALK!, 4 March 2014) <https://www.ejiltalk.org/the-crisis-in-ukraineand-the-prohibition-of-the-use-of-force-a-legal-basis-for-russias-intervention/> accessed 3 April 2017. 67 Dinstein (n 65) 257. 68 Gray (n 60). 69 ibid. 70 Official Internet Resources of the President of Russia, ‘Telephone conversation with US President Barack Obama’ (2 March 2014) < http://en.kremlin.ru/events/president/news/20355> accessed 3 April 2017. 71 Wisehart, (n 66). 72 Steven Erlanger, ‘Ukrainian Government Rushes to Dampen Secessionist Sentiment’ The New York Times (New York, 2 March 2014). 73 Grant (n 34) 81. 74 Oil Platforms (Iran v. USA) (n 29) para 73. 75 Nolte and Randelzhofer (n 59). 64

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The second authority upon which the Russian Federation may ground its legal justification lies within the realm of humanitarian intervention. Whether supporters of this doctrine seek to locate the legal basis for humanitarian missions within the interpretation of the final section Article 2(4) of the UN Charter,76 or within a narrow customary exception due to the perceived absoluteness of the general prohibition, State practice has generally “regarded rescue operations as justified under international law”77 despite State practice being “inconsistent”78 and case law remaining “ambiguous”.79 Moreover, Dörr and Randelzhofer argue that, “given the regular State practice for more than fifty years now, the positive opinio juris of the intervening and many third States, and a considerable reluctance on the part of other States to qualify forcible rescue operations as unlawful,… a rule of customary international law is by now established allowing limited forcible action with the legitimate aim to rescue a State’s own nationals”.80 In order to fully comprehend the burden of proof placed upon the Russian Federation to provide concrete evidence that the situation in Crimea constituted a humanitarian crisis, a comparison of the situation in Crimea with other episodes of humanitarian intervention is necessary. In the 1999 landmark NATO bombing campaign of Yugoslavia, the crisis was visibly evident with 700,000 Kosovo Albanians being displaced81 and 11,000 ethnic Albanians being estimated to have been killed during the conflict.82 Perhaps the Indian intervention in East Pakistan (now Bangladesh), which is usually cited as a compelling precedent for the lawfulness of humanitarian intervention,83 provides a more pertinent example by virtue of the unilateral rather than the collective nature of the intervention. Within the East Bengal region, an extensive refugee movement was initiated towards the end of March 1971, following the killing of 10,000 East Bengalis by the Pakistani Army.84 The situation escalated and grave violations of human rights were committed as civilians were massacred, villages destroyed, prisoners tortured and hostages killed.85 The crisis, therefore, was equally palpable before India militarily intervened to ensure the surrender of Pakistani forces therein and a cessation of the human rights atrocities86. It follows that the developed stage, which both those crises had to reach before military intervention was rendered acceptable within international law, bears testament to the narrow confines of the customary exception of humanitarian intervention. As previously mentioned in relation to self-defence, the 76

Fernando Teson, Humanitarian Intervention: An Inquiry into Law and Morality (2nd edition, Transnational Publishers 1997) 151. 77 Marxsen, (n 55) 373. 78 International Law Association, ‘Washington Conference: Use of Force’ (Draft Conference Report of the ILA 76th Biennial Conference, 2014) 12. 79 ibid. 80 Nolte and Randelzhofer (n 59) 60. 81 Prosecutor v. Milutinovic et al. (Trial Chamber Judgment) ICTY (2009) Case No. IT-05-87-T. 82 Neil Tweedie, ‘Kosovo War: Thousands killed as Serb forces tried to keep control of province’ The Telegraph (31 March 2009) <http://www.telegraph.co.uk/news/worldnews/europe/kosovo/5084374/Kosovo-War-Thousands-killedas-Serb-forces-tried-to-keep-control-of-province.html> accessed 3 April 2017. 83 Thomas Behuniak, ‘The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey’, 1978 79 Military Law Review 157, 176. 84 Ved Nanda, ‘Self-Determination in International Law: The Tragic Tale of Two Cities – Islamabad (West Pakistan) and Dacca (East Pakistan)’ (1972) 66 The American Journal of International Law 321, 321-323. 85 East Pakistan Staff Study, The Events in East Pakistan, 1971: A Legal Study by the Secretariat of the International Commission of Jurists (The Review of the International Commission of Justists, 1972) 31, 33, 38, 58, 59, 62. 86 Behuniak (n 83).

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Russian Federation “has at no point provided any concrete evidence that such violations have actually taken place”,87 whilst the OHCHR concluded that the alleged violations of Russian nationals were “neither widespread nor systemic”.88 Accordingly, the questionable portrayal of the situation in Crimea as a humanitarian crisis by the Russian Federation does not constitute a credible bedrock upon which the protection of nationals abroad may be based. 4.

INVITATION

The “strongest”89 justification for the military intervention invoked by the Russian Federation lies in the concept of intervention upon invitation. In a statement dated 3 March 2014, Viktor Yanukovych called on Vladimir Putin “to use the armed forces of the Russian Federation to restore law and order, peace and stability and to protect the people of Ukraine”.90 By his invitation, Yanukovych was purporting to exercise his right, as the supposed head of government, to consent on behalf of the State to a foreign intervention following the period of governmental transition, a right which was previously confirmed to exist by the ICJ.91 Assuming that the official government undertook the invitation,92 the expression of consent theoretically excludes any illegality resulting from a military presence.93 Therefore the key issue is the validity of Yanukovych’s consent. In order to assess the validity of Yanukovych’s consent it is necessary to explore the conditions that may categorically render his expression of consent valid or invalid. To that end, the International Law Commission, in its commentary to draft Article 29 on State Responsibility, has provided further guidance in the shape of five requirements, the most significant of which for our purposes is the condition that the consent must be attributable to the State.94 In principle, to fulfil this requirement, the consent must derive from the highest authority of the State, which is generally the internationally recognised government.95 Obscurity may arise, however, as “different States often recognised different parties to the conflict as a State’s legitimate representatives”.96 The criterion of effective control has traditionally been used to recognise the legality of an invitation for foreign intervention97 despite the legitimacy of the inviting power growing in importance, particularly in cases involving an evaluation of when such effective control is lost.98 87

Marxsen (n 55) 374. OHCHR (n 8) 18. 89 Marxsen (n 55) 374. 90 UN Security Council, ‘Letter dated 3 March 2014 from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General’ (UN Doc S/2014/146, 2014b). 91 Armed Activities on the Territory of Congo (Democratic Republic of the Congo v. Uganda) paras 4954. 92 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (n 21) para 126. 93 Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Oxford, Hart Publishing 2010) 249. 94 International Law Commission, ‘Yearbook of the International Law Commission 1979: Report of the Commission to the General Assembly on the work of its thirty-first session’ (Vol 2, Part 2, 1979) 109115. 95 Corten (n 93) 263. 96 Marxsen, (n 55) 377. 97 International Law Association (n 78) 13. 98 Georg Nolte, Intervention by Invitation (Max Plank Encyclopaedia of Public International Law 2010) para 17. 88

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In the Crimean context, Yanukovych had lost effective control in his flight from Ukraine whilst being head of an administration that has no stronger claims to be the legitimate government of Ukraine than the established interim government. In fact, despite his removal being in violation of the Ukrainian constitution,99 the Yanukovych administration remained practically dissolved.100 The validity of Yanukovych’s invitation depends on the contention that Ukraine was in “constitutional disarray”101 and that his administration was the only lawful government. As a result of his government breaking down following the upheaval and it becoming generally accepted, outside of the Russian Federation, that Yanukovych was no longer the ruling head of State,102 it is clear that there are insurmountable issues with the validity of the invitation, rendering it ineffective. Consequently, the armed intervention by the Russian Federation cannot be justified on the basis that Yanukovych requested a Russian military presence. 5. VALIDITY OF THE REFERENDUM Whilst the referendum itself violated the Ukrainian constitution,103 the holding of the referendum “necessarily involves major issues of international law”,104 and in order to be considered valid, the referendum must have satisfied international standards.105 Both Article 3 of the First Protocol to the European Convention on Human Rights and Article 25 of the International Covenant on Civil and Political Rights have, inter alia, stipulated standards of secrecy, equality, universality and, most importantly here, freedom of voting procedures. Accordingly, a factual evaluation is necessary to determine the legality of the referendum as one crucial constitutive element of the Russian annexation of Crimea. It appears the level of freedom that the population of Crimea had was insufficient. The freedom of a referendum fundamentally requires at least the restraint of armed forces of opposing parties106 and institutional neutrality.107 Neither one was achieved in the Crimean context.108 Moreover, the military presence “widely believed to be from the Russian Federation, was not conducive to an environment in which voters could freely exercise their right to hold opinions and the right to freedom of 99

Marxsen, (n 55) 375. Tom Grant, ‘The Yanukovych Letter: Intervention and Authority to Invite in International Law’ (2015) 2 Indonesian Journal of International and Comparative Law 281, 323. 101 Grant (n 34) 82. 102 Verkhovna Rada of Ukraine, ‘On Self-Withdrawal of the President of Ukraine from Performing His Constitutional Duties and Setting Early Elections of the President of Ukraine’ (No. 757-VII, 2014). 103 Venice Commission, ‘Opinion on “Whether the Decision taken by the Supreme Council of the autonomous Republic of Crimea in Ukraine to organise a Referendum on becoming a constituent territory of the Russian Federation or Restoring Crimea’s 1992 Constitution is Compatible with Constitutional Principles’ (Council of Europe, Opinion no 762, 2014). 104 Grant (n 34). 105 Anne Peters, ‘Sense and Nonsense of Territorial Referendums in Ukraine, and Why the 16 March Referendum in Crimea Does Not Justify Crimea’s Alteration of Territorial Status under International Law’ (EJIL: Talk!, 16 April 2014) < https://www.ejiltalk.org/sense-and-nonsense-of-territorialreferendums-in-ukraine-and-why-the-16-march-referendum-in-crimea-does-not-justify-crimeasalteration-of-territorial-status-under-international-law/> accessed 3 April 2017. 106 Anne Peters, Das Gebietsreferendum im Völkerrecht: Seine Bedeutung im Licht der Staatenpraxis nach 1989 (Baden-Baden: Nomos Verlagsgesellschaft 1995) 500. 107 Venice Commission (n 103). 108 State Council of the Republic of Crimea, ‘Vladimir Konstantinov: “Crimea Will Not Return in the Ukraine”’ (11 November 2014) <http://crimea.gov.ru/en/news/11_03_14_8> accessed 3 April 2017. 100

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expression”.109 The difficulties of ensuring the prerequisite conditions for a valid referendum whilst being under the effective control of a foreign power are nowhere more evident than within the Crimean context, as the OHCHR voiced a multitude of concerns regarding censorship, a lack of free press, persecutions of journalists, limited access to information and media, and anti-Ukrainian propaganda.110 Furthermore, the OHCHR “received many reports of vote rigging”111 with additional claims of “nonUkrainian citizens participating in the referendum, as well as individuals voting numerous times in different locations”.112 These allegations may be supported by the fact that the Russian Presidential Council for Civil Society and Human Rights briefly stated that no more than 60 per cent of votes were in favour of annexation and that voter turnout was as low as 30 per cent,113 which falls gravely below the figures announced by the chief election commissioner114. In any event, the lack of proper procedural conditions means that the referendum cannot be characterised as “a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes”.115 It is manifestly clear, therefore, that the referendum is ab initio in violation of international standards and cannot form a valid basis for the annexation of Crimea by the Russian Federation. 6. CONCLUDING REMARKS This paper explores the Russian military intervention and questions whether it constitutes a breach of the general prohibition on the use of force in international law before proceeding to examine the validity of the Crimean referendum. In doing so, perhaps the two most significant constitutive events of the overall procedure of the annexation are legally analysed to clarify the particularly complex predicament of Crimea. It may be asserted that the Russian Federation has prima facie violated the prohibition on the use of force as enshrined within Article 2(4) of the UN Charter as its seizure and de facto control of the Crimean region constitutes more than merely a de minimis level of armed force. The Russian Federation has attempted to rely on both the protection of Russian nationals located in Crimea and an express invitation by Yanukovych to justify its use of military force in that region. The Russian Federation cannot rely on self-defence to protect its nationals abroad due to its violation of the principles of necessity and proportionality. The narrow customary humanitarian exception to the prohibition is equally inaccessible for the Russian Federation due to the absence of any evidence that credibly characterises Crimea as a humanitarian 109

OHCHR (n 8) 4. ibid 20-22. 111 ibid 7. 112 ibid 20. 113 Paul Roderick Gregory, ‘Putin’s “Human Rights Council” Accidentally Posts Real Crimean Election Results’ (Forbes 2014) <https://www.forbes.com/sites/paulroderickgregory/2014/05/05/putins-human-rights-councilaccidentally-posts-real-crimean-election-results-only-15-voted-for-annexation/#58bf3e97f172> accessed 3 April 2017. 114 ‘With 100% ballots counted, 96.77% of Crimeans vote to re-unite with Russia – Crimean election chief’ (Voice of Russia, 17 March 2014). <https://sputniknews.com/voiceofrussia/2014_03_17/With100-of-ballots-counted-96-77-of-Crimeans-who-came-to-polls-on-Sunday-voted-to-re-united-withRussia-Crimean-election-chief-1708/> accessed 3rd April 2017. 115 UN General Assembly, ‘Annex to the Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73(e) of the Charter’ (UN Doc A/Res/15/1541, 1960) 29. 110

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crisis. The invitation by Yanukovych, although being the strongest argument in favour of intervention, is ineffective since his consent cannot validly be attributed to the State of Ukraine. It follows that the military intervention does constitute a violation of the prohibition on use of force and the justifications raised by the Russian Federation to alleviate its legal accountability are at best questionable. Added to this, the Crimean referendum is invalid from the outset because it fails to satisfy international procedural standards that are required as a matter of human rights law. Having confirmed the illegality of both the military intervention and the referendum, it is possible to assert that, from this perspective, two paramount constitutive elements of the annexation are illegal. This finds support from the majority of the Security Council and confirmation from the General Assembly policy of non-recognition and its view that Crimea remains within the internationally recognised borders of Ukraine. The current agenda, however, appears to remain concerned with returning Crimea to Ukraine116 before the Russian Federation be held legally accountable for its actions.

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â&#x20AC;&#x2DC;Sanctions against Russia to remain until Crimea returned to Ukraine â&#x20AC;&#x201C; U.S. Department of Stateâ&#x20AC;&#x2122; (Sputnik News, 2016) <https://sputniknews.com/politics/201503171019582871/> accessed 3 April 2017.!

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66 BIBLIOGRAPHY

Primary Sources Cases and Advisory Opinions Armed Activities on the Territory of Congo (Democratic Republic of the Congo v Uganda) (Judgment) ICJ Reports (2005) 168. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Judgment) ICJ Reports (1986) 14. Corfu Channel Case (UK v Albania) (Judgment) ICJ Reports (1949) 4. Oil Platforms (Iran v USA) (Judgment) ICJ Reports (2003) 161. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports (2004) 136. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Reports (1996) 226. Prosecutor v. Milutinovic et al. (Trial Chamber Judgment) ICTY (2009) Case No. IT05-87-T. Legislation, Governmental Papers and Organisation Documents Council of Europe, ‘Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (1952) <http://www.refworld.org/docid/3ae6b38317.html> accessed 16 March 2016. State Council of the Republic of Crimea, Press Release dated 17/03/2014 <www.rada.crimea.ua> accessed 16 March 2016. State Council of the Republic of Crimea, ‘Vladimir Konstantinov: “Crimea Will Not Return in the Ukraine”’ (11 November 2014) <http://crimea.gov.ru/en/news/11_03_14_8> accessed 3 April 2017. UN, ‘Charter of the United Nations’ (1 UNTS XVI, <http://www.refworld.org/docid/3ae6b3930.html> accessed 16 March 2016.

1945)

UN General Assembly, ‘Annex to the Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73(e) of the Charter’ (UN Doc A/Res/15/1541, 1960). UN General Assembly, ‘Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations’ (UN Doc A/RES/25/2625, 1970). UN General Assembly, ‘Definition of Aggression’ (UN Doc A/RES/29/3314, 1974). UN General Assembly, ‘International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and Political Rights’, (UN Doc A/Res/21/2200 1966).

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UN General Assembly, ‘Prevention of armed conflict: (b) Strengthening the role of mediation in the peaceful settlement of disputes, conflict prevention and resolution’, (UN Doc A/68/PV.80, 2014). UN General Assembly, ‘Territorial Integrity of Ukraine’ (UN Doc A/RES/68/262, 2014). UN Information Organisation, Documents of the United Nations Conference on International Organisation (New York: United Nations Information Organisation, volume 6, 1945). UN Secretary-General, ‘Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992’ entitled ‘An Agenda for Peace, Preventive Diplomacy, Peacemaking and Peacekeeping’, (UN Doc A/47/277-S/24111, 1992). UN Security Council, Annex to the ‘Letter dated 19 March 2014 from the Permanent Representative of the Russian Federation to the United Nations Addressed to the Secretary-General’, (UN Doc A/68/803–S/2014/202, 2014). UN Security Council, Annex to the ‘Letter dated 3 March 2014 from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General’ (UN Doc S/2014/146, 2014). UN Security Council, ‘Letter dated 28 February 2014 from the Permanent Representative of Ukraine to the United Nations addressed to the President of the Security Council ‘ (UN Doc S/PV.7138, 2014). Venice Commission, ‘Code of Good Practice on Referendums’ (Council of Europe, Study no 371/2006, 2007). Venice Commission, ‘Opinion on “Whether the Decision taken by the Supreme Council of the autonomous Republic of Crimea in Ukraine to organise a Referendum on becoming a constituent territory of the Russian Federation or Restoring Crimea’s 1992 Constitution is Compatible with Constitutional Principles’ (Council of Europe, Opinion no 762, 2014). Verkhovna Rada of Ukraine, ‘On Self-Withdrawal of the President of Ukraine from Performing His Constitutional Duties and Setting Early Elections of the President of Ukraine’ (No. 757-VII, 2014). Secondary Sources Articles and Journals BBC, ‘Ukraine’s Yanukovych asked for troops, Russia tells UN’ (BBC 2014) <http://www.bbc.co.uk/news/world-europe-26427848> accessed 3 April 2017. Behuniak T, ‘The Law of Unilateral Humanitarian Intervention by Armed Force: A Legal Survey’, 1978 79 Military Law Review 157. Blokker N, ‘Is the Authorisation Authorised? Powers and Practice of the UN Security Council to Authorise the Use of Force by “Coalitions of the Able and Willing”’ 11 European Journal of International Law 541. Conforti B, The Doctrine of Just War and Contemporary International Law, (2002) 12(1) Italian Yearbook of International Law 3.

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East Pakistan Staff Study, The Events in East Pakistan, 1971: A Legal Study by the Secretariat of the International Commission of Jurists (The Review of the International Commission of Jurists, 1972). Erlanger S, ‘Ukrainian Government Rushes to Dampen Secessionist Sentiment’ (The New York Times, 2 March 2014). Frank T, ‘Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States’ (1970) 64(5) American Journal of International Law 809. Glennon M, ‘How International Rules Die’ (2005) 93 Georgetown Law Journal 939. Glennon M, ‘The Fog of Law: Self-Defence, Inherence, and Incoherence in Article 51 of the United Nations Charter’ (2002) 25 Harvard Journal of Law & Public Policy 539. Grant T, ‘Annexation of Crimea’, 2015 (109(1) American Journal of International Law 68. Grant T, ‘The Yanukovych Letter: Intervention and Authority to Invite in International Law’ (2015) 2 Indonesian Journal of International and Comparative Law 281. Greenwood C, ‘Self-Defence’ (Max Planck Encyclopaedia of Public International Law, 2001) para 24 <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e401?prd=EPIL> accessed 3 April 2017. Gregory P, ‘Putin’s “Human Rights Council” Accidentally Posts Real Crimean Election Results’ (Forbes 2014) <https://www.forbes.com/sites/paulroderickgregory/2014/05/05/putins-human-rightscouncil-accidentally-posts-real-crimean-election-results-only-15-voted-forannexation/#58bf3e97f172> accessed 3 April 2017. Henkin L, ‘The Reports of the Death of Article 2(4) Are Greatly Exaggerated’ (1971) 65 American Journal of International Law 544. International Law Association, ‘Washington Conference: Use of Force’ (Draft Conference Report of the ILA 76th Biennial Conference, 2014). International Law Commission, ‘Yearbook of the International Law Commission 1979: Report of the Commission to the General Assembly on the work of its thirtyfirst session’ (Vol 2, Part 2, 1979). ITAR-TASS, ‘Putin’s Letter on Use of Russian Army in Ukraine Goes to Upper House’ (Russian news agency, Press Report, 2014) <http://tass.ru/en/russia/721586> accessed 16 March 2016. Marxsen C, ‘The Crimea Crisis – An International Law Perspective’ (2014) 74 Heidelberg Journal of International Law 367. Nanda V, ‘Self-Determination in International Law: The Tragic Tale of Two Cities – Islamabad (West Pakistan) and Dacca (East Pakistan)’ (1972) 66 The American Journal of International Law 321. Nolte G, Intervention by Invitation (Max Plank Encyclopaedia of Public International Law 2010).

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Official Internet Resources of the President of Russia, ‘Laws on admitting Crimea and Sevastopol to the Russian Federation’, (2014). < http://en.kremlin.ru/events/president/news/20625> accessed 4 April 2017. Official Internet Resources of the President of Russia ‘Telephone conversation with US President Barack Obama’ (2 March 2014) < http://en.kremlin.ru/events/president/news/20355> accessed 3 April 2017. Office of the High Commissioner for Human Rights, Annex to the ‘Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Ukraine’ entitled ‘Reports by the Office of the United Nations High Commissioner for Human Rights on the human rights situation in Ukraine from 15 April to 29 August 2014’, (UN Doc A/HRC/27/75, 2014). Peters A, ‘Sense and Nonsense of Territorial Referendums in Ukraine, and Why the 16 March Referendum in Crimea Does Not Justify Crimea’s Alteration of Territorial Status under International Law’ (EJIL: Talk!, 16 April 2014) < https://www.ejiltalk.org/sense-and-nonsense-of-territorial-referendums-in-ukraineand-why-the-16-march-referendum-in-crimea-does-not-justify-crimeas-alteration-ofterritorial-status-under-international-law/> accessed 3 April 2017. Reisman M and Armstrong A, ‘The Past and Future of the Claim of Preemptive SelfDefense’ (Yale Law School Faculty Scholarship Series, Paper 957, 2006). Ronzitti N, ‘The Expanding Law of Self-Defence’ (2006) 11(3) Journal of Conflict and Security Law 343. Tweedie N, ‘Kosovo War: Thousands killed as Serb forces tried to keep control of province’ (The Telegraph, 31 March 2009) <http://www.telegraph.co.uk/news/worldnews/europe/kosovo/5084374/Kosovo-WarThousands-killed-as-Serb-forces-tried-to-keep-control-of-province.html> accessed 3 April 2017. Ukrinform, ‘Sanctions against Russia to remain until Crimea returned to Ukraine – U.S. Department of State’ (Sputnik News, 2016) <https://sputniknews.com/politics/201503171019582871/> accessed 3 April 2017. Voice of Russia, ‘With 100% ballots counted, 96.77% of Crimeans vote to re-unite with Russia – Crimean election chief’ (Voice of Russia, 17 March 2014). <https://sputniknews.com/voiceofrussia/2014_03_17/With-100-of-ballots-counted96-77-of-Crimeans-who-came-to-polls-on-Sunday-voted-to-re-united-with-RussiaCrimean-election-chief-1708/> accessed 3rd April 2017. Von Elbe J ‘The Evolution of the Concept of the Just War in International Law’ (1939) 33 The American Journal of International Law 665. Waldock C, ‘The Regulation of the Use of Force by Individual State in International Law’ (Collective Courses of The Hague Academy of International Law, Vol 081, 1952). Wisehart D, The Crisis in Ukraine and the Prohibition of the Use of Force: A legal Basis for Russia’s Intervention? (EJIL: TALK!, 4 March 2014) <https://www.ejiltalk.org/the-crisis-in-ukraine-and-the-prohibition-of-the-use-offorce-a-legal-basis-for-russias-intervention/> accessed 3 April 2017.

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Books Akehurst M, Akehurst’s Modern Introduction to International Law (7th edn, Routledge 1997). Blokker N and Schrijver N, The Security Council and the Use of Force: Theory and Reality – A Need for Change? (Martinus Nijhoff Publishers 2005). Bothe M, ‘Achter Abschnitt: Friedenssicherung und Kriegsrecht’ in Vitzthum W (ed) Völkerrecht (5th edn, de Gruyter, 2010). Brierly J, The Law of Nations: An Introduction to the International Law of Peace (Clarendon Press 1963). Brownlie I, International Law and the Use of Force by States (Clarendon Press 1963). Cherif Bassiouni M (ed) The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimisation, and Post-Conflict Justice (Intersentia 2010). Corten O, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Hart Publishing, 2010). Dinstein Y, War, Aggression and Self-Defence (5th edn, CUP 2011). De Vattel E, The Law of Nations (originally published 1758, Liberty Fund 2008). Evans M (ed), International Law (3rd edn, OUP 2010). Gazzini T, The Changing Rules on the Use of Force in International Law (Manchester University Press 2005). Goodrich L, Hambro E and Simons A, Charter of the United Nations, Commentary and Documents (3rd revised edition, Columbia University Press 1969). Gray C, International Law and the Use of Force (3rd edn OUP 2008). Gray C, ‘The Use of Force and the International Legal Order’ in Evans M (ed) International Law (3rd edn, OUP 2010). Grewe W, The Epochs of International Law (DeGruyter, translated and revised by Byers M, 2000). Henkin L, How Nations Behave (2nd edn, Columbia University Press 1979). Kelsen H, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (Stevens 1950). Neff S, War and the Law of Nations: A General History (CUP 2005). Neuhold H, Internationale Konflikte – Verbotene und erlaubte Mittel ihrer Austragung (Springer Publishing 1977). Nolte G and Randelzhofer A, ‘Article 51’ in Simma B and others (eds), The Charter of the United Nations: A Commentary (3rd edn, OUP 2012). Nussbaum A, A Concise History of the Law of Nations (revised edition, Macmillan 1962). Peters A, Das Gebietsreferendum im Völkerrecht: Seine Bedeutung im Licht der Staatenpraxis nach 1989 (Baden-Baden: Nomos Verlagsgesellschaft 1995). Ronzitti N, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (Dordrecht: Martinus Nijhoff Publishers 1985).

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Seyersted F, United Nations Forces in the Law of Peace and War (Leiden: Sijthoff Publishers 1966). Simma B and others (eds), The Charter of the United Nations: A Commentary (3rd edn OUP 2012). Teson F, Humanitarian Intervention: An Inquiry into Law and Morality (2nd edn, Transnational Publishers 1997). White N and Henderson C, Research Handbook on International Conflict and Security Law: Jus ad Bellum, Jus in Bello and Jus Post Bellum (Edward Elgar Publishing 2013). Other sources consulted Bothe M, ‘Current Status of Crimea: Russian Territory, Occupied Territory or What?’ (2014) 53 Military Law and Law of War Review 99. Catala A, ‘Secession and Annexation: The Case of Crimea’ (2015) 16 German Law Journal 581. Doswald-Beck, ‘The Legality of the United States Intervention in Grenada’ (1984) 31 Netherlands International Law Review 355. Eichensehr K, ‘Defending Nationals Abroad: Assessing the Lawfulness of Forcible Hostage Rescues’ (2008) 48 Virginia Journal of International Law 451. Frank T, Recourse to Force (CUP 2002). Garden J, Necessity, Proportionality and the Use of Force by States (CUP 2004). Geifs R, ‘Russia’s Annexation of Crimea: The Mills of International Law Grind Slowly but They Do Grind’ (2015) 91 International Law Studies Series: US Naval War College 425. Grimal F and Melling G, ‘The Protection of Nationals Abroad: Lawfulness or Toleration? A Commentary’ (2012) 16 Journal of Conflict and Security Law 541. Grotius H, On the Law of War and Peace (originally published 1625, CUP 2012). Issaeva M, ‘Case of Crime in the Light of International Law: Its Nature and Implications’ (2015) 3 Russian Law Journal 158. Machiavelli N, The Prince (originally published 1513, Penguin Classics, revised edition 2003). Olson P, ‘Lawfulness of Russian Use of Force in Crimea’ (2014) 53 Military Law and Law of War Review 17. Ruys T, ‘The “Protection of Nationals” Doctrine Revisited’ (2008) 13 Journal of Conflict and Security Law 233.

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Schachter O, ‘The Right of States to Use Armed Force’ (1984) 82 Michigan Law Review 1620. Vitoria F, De Indis De Jure Belli (originally published 1532, Oceana Publications, edited by Ernest Nys, 1964).

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“PLAYING ROULETTE WITH THE HEALTH OF CHILDREN”? THE UK REGULATORY BALANCE BETWEEN PROTECTING THE RIGHTS, SAFETY AND WELL-BEING OF CHILDREN AND THE COMMERCIAL INTERESTS OF THE INDUSTRY IN PAEDIATRIC CLINICAL TRIALS Charlotte Chamberlain Kedge Martin, Chief Executive of the charity Wellchild, has described the practice of prescribing unlicensed medicine for children, in the absence of paediatric clinical trials, as “playing roulette with the health of children.” This result is unsurprising in light of the following realities: clinical trials are dependent upon industry sponsorship, industry sponsors are dependent on profit, and paediatric clinical trials entail increased expense, increased regulatory burdens, and often reduced profit. It is not feasible to relax regulations because of the illicit activity that would inevitably occur in their absence, providing an equally dangerous risk to children. The tensions between the need to license medicine for children, the need for strict regulations and the inherent unprofitability of paediatric clinical trials make striking a suitable regulatory balance extraordinarily difficult to achieve. This paper will consider solutions that acknowledge and facilitate the coexistence of each of these necessary and inevitably competing interests. Keywords: Medical law, paediatric medicine, child health, UK regulations, safety, clinical trials 1. INTRODUCTION The Medicines for Human Use (Clinical Trials) Regulations 2004 (‘The UK Regulations’) state that “the rights, safety, and well-being of the trial subjects are the most important considerations and shall prevail over interests of science and society.”1 However, in clinical trials the interests of trial subjects and the interests of science are intrinsically interconnected due to their reliance upon industry funded trials, journals and physicians. In the first part of this paper, I will consider how these commercial interests provide a two-pronged problem within paediatric clinical trials. Firstly, an inherent financial disincentive for their conduct due to their relative unprofitability compared to adult trials. Secondly, a lack of transparency and neutrality has made it practically impossible for a parent to provide well-informed proxy consent. This latter issue presents a significant problem for paediatric trials because The UK Regulations stipulate that participation of a child under sixteen in a clinical trial will be based upon the “informed consent”2 of their legal representative (normally a parent). This status-based approach is controversial when contrasted with the subjective standard of ‘Gillick competency’3 used elsewhere in medical law, however this debate is not within the scope of this paper. Informed consent presupposes the ability to inform oneself, which in turn requires an adequate, unbiased and transparent pool of information concerning the proposed trial. Therefore, I will consider in the second $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 1

Medicines for Human Use (Clinical Trials) Regulations 2004, sched 1, part 2, para 3. ibid, Schedule 1, Part 4, Para 4. 3 Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 (HL). 2

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part of this paper how effectively the UK achieves a suitable regulatory balance between protecting informed consent through strict transparency and ethical requirements whilst refraining from being so onerous that they further disincentivise paediatric clinical trials and, consequently, encourage the use of unlicensed medicine in children: the phenomenon that Kedge Martin described as “playing roulette with the health of children.”4 I will contend that whilst transparency and ethical regulation is increasingly sufficient under the UK and EU frameworks, more must be done to incentivise paediatric clinical trials and to streamline and simplify the regulatory burden upon trial sponsors, in order to reduce the prevalence of unlicensed medicine for children, which provides the greatest current risk to their rights, safety and wellbeing. Consequently, I will consider in the third part of this paper further solutions to achieve this, including: financial incentives, non-commercial trials, public/private partnership, commercially sensitive transparency initiatives and the relaxation of the ‘direct benefit’ requirement. 2. DEFINING CHILDREN’S RIGHTS, SAFETY AND WELLBEING I will assess the effectiveness of the UK regulatory balance by reference to children’s “rights, safety and well-being”, as referred to in The UK Regulations.5 A. Children’s Rights Freeman asserts that “[r]ights affirm the Kantian principle that we are ends in ourselves, and not means to the ends of others.”6 However, clinical trials are primarily aimed at the advancement of medical knowledge for future patients; the subject is a means to achieve that end and any benefit they incur is simply a desirable by-product, which directly contradicts the Kantian imperative.7 Conflating this ultimate purpose of clinical research with expectations of individual benefit has been referred to as the ‘therapeutic misconception’.8 Consequently, it is difficult to say with conviction that the interests of trial subjects truly prevail over those of science and society as The UK Regulations purport to be the case.9 This reality makes the protection of individual rights vitally important. In evaluating how well the UK regulatory framework achieves this I will focus primarily upon two rights which risk being sidelined during paediatric clinical trials: a child’s Article 8 right to respect for private and family life under the European Convention of Human Rights (ECHR),10 which encompasses respect for the their autonomy in the clinical trial process.11 Secondly, I will examine $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 4

The Association of British Pharmaceutical Industry, ‘Current Issues In Paediatric Clinical Trial: A Meeting Held At The Royal College Of Obstetricians’ (2005) 9 <http://www.abpi.org.uk/ourwork/library/medical-disease/Documents/peadiatric-clinical-trials.pdf> accessed 4 November 2015. 5 (n 1), sched 1, part 2, para 3. 6 Michael Freeman, ‘The Human Rights Of Children’ (2010) 63 Current Legal Problems 1, 16. 7 Steven Edwards and Michael McNamee, ‘Ethical Concerns Regarding Guidelines For The Conduct Of Clinical Research On Children’ (2005) 31 Journal of Medical Ethics 351, 352. 8 Charles W Lidza and others, ‘Therapeutic Misconception And The Appreciation Of Risks In Clinical Trials’ (2004) 58 Social Science & Medicine 1689. 9 (n1), sched 1, part 2, para 3. 10 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), art 8. 11 Ananda Hall, 'Children’s Rights, Parent’s Wishes And The State: The Medical Treatment Of Children' (2006) 36 Family Law 317.

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a child’s right to the “best healthcare possible”,12 as set out in article 24 of the Convention on the Rights of the Child (UNCRC). B. Children’s Safety ‘Safety’ is an inherently subjective term as it can denote anything from ‘no risk’ to the allowance of necessary but minimal harm. In the second part, I will discuss the risk/benefit ratio afforded under The UK Regulations. However, in assessing the UK regulatory framework, I will consider two separate risks to children’s safety in paediatric clinical trials: the risk of uninformed parental consent in the absence of adequate transparency and neutrality and, the risks from unlicensed paediatric medicines if regulation is too onerous or financially burdensome. C. Children’s Wellbeing Protection of a child’s rights and safety are pre-requisites for their ‘well-being’. Edwards and McNamee concluded that the “fair and natural reading”13 of The UK Regulations’ use of this word is that no interest, including the utilitarian interests of the majority or commercial interests of the industry, should take precedence over the interests of the individual child. I will argue that although the interests of science should by no means prevail over those of children, due to the financial necessities of industry funding, they should be considered alongside as a necessary prerequisite to children’s well-being. 3. COMMERCIAL INTERESTS IN PAEDIATRIC CLINICAL TRIALS A. Industry-funded Trials It has been suggested that, “industry-funded randomized trials represent a happy coincidence between commercial self-interest and the public good.”14 This is supported by the fact that in the UK the industry funds 70 per cent of clinical trials.15 However, the extent of this “happy coincidence” is significantly reduced in paediatric trials because, unsurprisingly, potentially lucrative trials attract industry funding far more readily16 than those in older17 or less profitable areas18 (such as exercise as a treatment for depression).19 Therefore, as paediatric trials generally produce more modest returns than those for adults,20 because they take longer and cost much more21 $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 12

United Nations Convention on the Rights of the Child (1989) (UNCRC), art 24. Edwards and McNamee (n 7) 352. 14 Susanna Every-Palmer and Jeremy Howick, 'How Evidence-Based Medicine Is Failing Due To Biased Trials And Selective Publication' (2014) 20 Journal of Evaluation in Clinical Practice 908, 912. 15 UK Clinical Research Collaboration, 'Clinical Research In The UK: Towards A Single System That Reliably Delivers Distinctive Quality And Rapid Access At Reasonable Cost' (2005) <http://www.ukcrc.org/wp-content/uploads/2014/09/McKinsey-Study-FINAL-Report-23.8.05.pdf> accessed 12 January 2016. 16 James Brown, 'Politics, Method, And Medical Research' (2008) 75 Philosophy of Science 756. 17 Richard Davidson, 'Source Of Funding And Outcome Of Clinical Trials' (1986) 1 Journal of General Internal Medicine 155. 18 Every-Palmer and Howick (n 14) 911. 19 See Gary Cooney, ‘Exercise For Depression’ (2013) 6 Journal of Evidence-Based Medicine 307. 20 Jennifer S Li and others, 'Economic Return Of Clinical Trials Performed Under The Pediatric Exclusivity Program' (2007) 297 Journal of the American Medical Association 480, 482. 13

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on a per subject basis,22 the percentage of industry funding that they attract (41 per cent) is significantly lower than their adult counterparts, which in turn imposes a significant restriction upon their conduct. Another problem arising from industry funding is the manipulation of trials to engineer a profitable result. Heres’23 study found that 90 per cent of industry-funded trials reported a positive result for the sponsor’s drug, compared to just 35 per cent in non-industry funded studies.24 A result attributed to the study design such as the dosage of the comparator drug; where too low, it was unlikely to have any meaningful effect, and where too high the side effects would seem intolerable.25 Furthermore, the intentional suppression of negative results has also been prevalent in industry-funded trials; in 2012, GlaxoSmithKline suppressed negative trials of the drug Paroxetine26 (which was actually known to increase suicide rates in teenagers)27 and, likewise, in 2010 AstaZeneca illegally marketed and suppressed negative results of the drug Quetiapine.28 These examples demonstrate the importance attributed by pharmaceutical sponsors to positive and profitable results29 above the medical interests of trial subjects. The consequent lack of neutrality and uncertainty of industry-funded results is particularly problematic for paediatric clinical trials because of the reduction in credibility of the information upon which a doctor will base their advice and a parent their proxy consent for a child’s participation in a trial. Without this certainty, it seems likely that, as Every-Palmer and Howick suggest, “…[c]linical decisions based on such evidence are likely to be misinformed, with patients given less effective, harmful or more expensive treatments.”30 This constitutes a serious threat to children’s safety, as well as a breach of their Article 8 ECHR right in the absence of well-informed consent.

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Priority Medicines for Children (ERA-NET PrioMedChild), 'Public-Private Cooperation In Medicines For Children Research: Identification Of Opportunities And Barriers For Public-Private Cooperation' (2008) 4 <http://www.priomedchild.eu/fileadmin/cm/wetenschap_en_innovatie/priomedchild/Deliverable%204. 2.pdf> accessed 5 January 2016. 22 Charles A Thompson and William R Treem, 'Opportunities For Public-Private Partnerships In Paediatric Clinical Research' (2012) <http://www.ema.europa.eu/docs/en_GB/document_library/Presentation/2014/07/WC500169607.pdf> accessed 1 November 2015. 23 Stephan Heres S and others, 'Why Olanzapine Beats Risperidone, Risperidone Beats Quetiapine, And Quetiapine Beats Olanzapine: An Exploratory Analysis Of Head-To-Head Comparison Studies Of Second-Generation Antipsychotics' (2006) 163 American Journal of Psychiatry 185. 24 John Yaphe and others, 'The Association Between Funding By Commercial Interests And Study Outcome In Randomized Controlled Drug Trials' (2001) 18 Family Practice 565. 25 Richard Smith, 'Medical Journals Are An Extension Of The Marketing Arm Of Pharmaceutical Companies' (2005) 2 PLOS Medicine e138. 26 Bob Roehr, 'GlaxoSmithKline Is Fined Record $3Bn In US' (2012) 345 British Medical Journal e4568. 27 Jeanne Lenzer, 'Manufacturer Admits Increase In Suicidal Behavior In Patients Taking Paroxetine' (2006) 332 British Medical Journal 1175. 28 Carl Elliott, White Coat, Black Hat (Beacon Press 2010). 29 Peter Doshi and Tom Jefferson, 'Clinical Study Reports Of Randomised Controlled Trials: An Exploratory Review Of Previously Confidential Industry Reports' (2013) 3 British Medical Journal Open e002496. 30 Every-Palmer and Howick (n 14), 908.

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Journals provide the primary platform for clinical trial publication,31 making them an indispensible basis for a doctor’s advice and a parent’s informed consent to paediatric clinical trials. Cave asserts that forcing a clinical trial upon an adult would undermine their autonomy and breach their Article 8 ECHR right.32 Consequently, the Article 8 right of minors is undoubtedly engaged due to their lack of consent under the UK Regulations. However, Fortin contends that children’s Article 8 right should be read as synonymous with welfare.33 Therefore, a clinical trial providing sufficient potential of significant benefit would not be in breach of Article 8. Similarly, as Article 8 is a qualified right, a child’s autonomy may be proportionally balanced against the protection of their health under Article 8(2). This derogation would surely only be proportional upon the grounds of a sufficient factual basis. In the same way that industry funding potentially compromises neutrality, the fact that two-thirds of journals are commercially funded gives rise to similar issues.34 This is largely due to ‘publication bias’35 – the preference for publication of positive trials over negative or inconclusive trials36 because of the commercial benefits of being cited in further influential research.37 Given that 85 per cent of industry-funded trials reach positive results, compared to just 50 per cent in publically funded studies,38 this bias inevitably discriminates against the latter. It is estimated that 50 per cent of clinical trials go unpublished39 and, as paediatric trials are more reliant upon public funding than adult trials, they seem likely to form a significantly disproportionate percentage of these, leaving a sizeable gap in paediatric knowledge. C. Investigating Physicians A child’s doctor will often be simultaneously acting as a clinical trial investigator40 and as the primary means through which to enrol subjects; the possibility of rapid enrolment by this means is highly advantageous to trial sponsors, with one investigator describing the sponsor’s priorities as “Number one – rapid enrolment. Number two – rapid enrolment. Number three – rapid enrolment.”41 Unsurprisingly, $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 31

Sameer Chopra, 'Industry Funding Of Clinical Trials: Benefit Or Bias?' (2003) 290 Journal of the American Medical Association 113. 32 Emma Cave, 'Seen But Not Heard? Children In Clinical Trials' (2010) 18 Medical Law Review 1, 13. 33 Jane Fortin, 'Accommodating Children's Rights In A Post Human Rights Act Era' (2006) 69 Modern Law Review 299, 311. 34 Matthias Egger, Christopher Bartlett and Peter Jüni, 'Are Randomised Controlled Trials In The BMJ Different?' (2001) 323 BMJ 1253. 35 Peter Border, ‘Transparency Of Clinical Trials Data’ (Parliamentary Office of Science and Technology 2014) <http://researchbriefings.files.parliament.uk/documents/POST-PN-461/POST-PN461.pdf> accessed 9 December 2015. 36 ibid. 37 ibid. 38 Florence T Bourgeois, Srinivas Murthy and Kenneth D Mandl, 'Outcome Reporting Among Drug Trials Registered In Clinicaltrials.Gov' (2010) 153 Annals of Internal Medicine 158. 39 Fujian Song et al, 'Dissemination And Publication Of Research Findings: An Updated Review Of Related Biases' (2010) 14 Health Technology Assessment 1. 40 The Association of British Pharmaceutical Industry, 'Current Issues In Paediatric Clinical Trials: A Meeting Held At The Royal College Of Obstetricians' (2005) <http://www.abpi.org.uk/ourwork/library/medical-disease/Documents/peadiatric-clinical-trials.pdf> accessed 4 November 2015. 41 US Department of Health and Human Services, 'The Pediatric Exclusivity Provision: January 2001 Status Report To Congress' (2001) 13

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there are also significant economic and professional incentives for the physician. Firstly, participation in a cutting-edge clinical trial allows a physician to remain at the forefront of their field42 and presents the opportunity to become a published co-author in their area of expertise.43 Furthermore, the physician’s remuneration for enrolment will often be significant. Although exact figures are normally confidential, there are instances of pharmaceutical companies paying investigating physicians up to $2000 per patient recruited.44 In the following part of this paper I will discuss in detail how the UK framework regulates this significant conflict of interest; in short, The UK Regulations prevent “a person connected with the conduct of the trial”45 from giving informed consent on behalf of child. Despite this, in practice, the child’s doctor is likely to be the primary influence upon the parent’s willingness to give their proxy consent. Shilling and Young found that half of the parents studied would provide their consent for a trial if their doctor suggested it.46 Likewise, another study found that 25 per cent of parents felt obliged to cooperate because of a sense of dependence upon the investigating physician.47 Besides the advice of the doctor, any independent information that a parent has access to will come predominantly from patient information leaflets, making them of utmost importance. However, these leaflets are commonly considered to be too complicated for a parent to effectively base their decision upon because of the prevalence of quantitative information48 and medical jargon.49

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ <http://www.fda.gov/downloads/Drugs/DevelopmentApprovalProcess/DevelopmentResources/UCM0 49915.pdf> accessed 7 February 2016. 42 Pharmaceutical Product Development, 'Advantages Of Being A Clinical Trial Investigator' <http://www.ppdi.com/Participate-In-Clinical-Trials/Become-an-Investigator/Advantages> accessed 3 March 2016. 43 ibid. 44 Ann Silversides, 'Clinical Trial Participation Poses Ethical, Practical Issues' (2009) 180 Canadian Medical Association Journal 500. 45 (n1), sched 1, part 1, para 2(a)(ii). 46 Valerie Shilling and Bridget Young , 'How Do Parents Experience Being Asked To Enter A Child In A Randomised Controlled Trial?' (2009) 10 BMC Medical Ethics1. 47 Margriet van Stuijvenberg and others, 'Informed Consent, Parental Awareness, And Reasons For Participating In A Randomised Controlled Study' (1998) 79 Archives of Disease in Childhood 120. 48 Lisa M Schwartz, Steven Woloshin, William C Black and Gilbert Welch, 'The Role Of Numeracy In Understanding The Benefit Of Screening Mammography' (1997) 127 Annals of Internal Medicine 966. 49 Kenneth J Tarnowski and others, 'Readability Of Paediatric Biomedical Research Informed Consent Forms' (1990) 65 Pediatrics 58.

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The UK Regulations implement EU Clinical Trials Directive 2001/20/EC,50 and are supplemented by further EU provisions, as well as policies of bodies responsible for ethical approval and implementation of the UK and EU regulatory frameworks. In order to remedy the conflict in paediatric clinical trials between necessary commercial interests and the rights, safety and well-being of children, the UK regulatory framework must strike a complex balance between safeguarding informed consent through strict regulation of transparency and conflicts of interests, and not being so restrictive as to further disincentivise paediatric clinical trials. A. Transparency Transparency in clinical trials has been prioritised at both domestic and international levels because of its importance for informed consent. Compliance with UK and EU regulation is overseen by a number of bodies51 including The European Medicines Agency (EMA), The UK Medicines and Healthcare Products Regulatory Agency (MHRA) and The Health Research Authority (HRA). The UK Regulations require that the trial sponsor makes a “request for authorisation to conduct a clinical trial” to the licensing authority.52 This will include approval from the MHRA, a Research Ethics Committee (overseen by the HRA) and the NHS organisation involved in the trial (R&D Approval).53 Similarly, for drugs seeking to be marketed within the EU, the EMA must provide marketing authorisation.54 Harmonisation between UK and EU transparency regulation is crucial due to the international nature of clinical trials.55 Sir Alistair Breckenridge, the former chairman of the MHRA, stated the aim of the 2001 directive was: “to afford greater protection to subjects in clinical trials” and “to harmonise regulation and conduct of trials throughout Europe.”56 The formulaic process of registration and authorisation of clinical trials domestically and at EU level is largely unavoidable because marketability of the $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 50

Council Directive 2001/20/EC of 4 April 2001 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use [2001] OJ L 121/34. 51 House of Commons Science and Technology Committee, 'Clinical Trials: Third Report Of Session 2013-14' (2013) <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmsctech/104/10404.htm> accessed 5 February 2016. 52 Medicines for Human Use (Clinical Trial) Regulations 2004, s17. 53 Department of Health, 'Governance Arrangements For Research Ethics Committees: A Harmonised Edition' (2011) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/213753/dh_133993.pdf > accessed 3 December 2015. 54 European Medicines Agency (EMA), 'The European Regulatory System For Medicines And The European Medicines Agency’ A Consistent Approach To Medicines Regulation Across The European Union' (2014) <http://www.ema.europa.eu/docs/en_GB/document_library/Brochure/2014/08/WC500171674.pdf> accessed 16 February 2016. 55 Rebecca A English, Yeanwoo Lebovitz and Robert B Giffin, Transforming Clinical Research In The United States (National Academies Press 2010) 24. 56 House of Commons Science and Technology Committee, 'Written Evidence Submitted By Sir Alasdair Breckenridge' (2013) <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmsctech/104/104vw15.htm> accessed 12 January 2016.

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target drug depends on it. The HRA require registration as a condition for ethical approval57 and the EMA for marketing authorisation. Transparency in the publication of clinical trials has proven significantly more difficult to regulate. The House of Commons Science and Technology committee, in 2014, insisted that “information relating to trials should be shared in a way that is accessible, assessable, intelligible and usable,”58 and that, in these areas, the UK regulatory framework bore significant deficiencies due to the lack of mandatory publication of summary results and Clinical Study Reports.59 The deficiencies in The UK Regulations can be largely attributed to insufficient minimum standards within the EU directive 2001/20/EC that they serve to implement.60At face value this deficiency poses a significant problem for the ability to give informed proxy consent. However, this directive has been repealed by EU Regulation 536/2014,61 which applies from 28 May 2016, and significantly contributes to EU-wide harmonisation of transparency regulation. It creates an ‘EU portal’ which will act as a single streamlined entry point for data relating to proposed trials as well as a publically accessible ‘EU Database’ where trials must be registered and their summary results published within a year, under Articles 80 and 81 respectively.62 As the measure is a regulation it is directly effective within the UK, completely changing the legal framework upon which the Committee’s criticisms were based and bringing UK law and the EU Clinical trials database (EudraCT)63 in line with the equivalent open database in the US (clinicaltrials.gov). These streamlined facilities have momentous effects upon error identification, the reduction of selective reporting64 and, consequently, safeguard the ability to make a well-informed, balanced judgement concerning a minor’s participation in a paediatric clinical trial. Despite the contributions of EU Regulation 536/2014, Dr Goldacre asserts that it is “weak and does not adequately address the problem of missing results”,65 which is a view consistent with the notion that I have expressed – transparency in publication is the hardest to achieve. However, since Dr Goldacre’s statement, a vast web of policy, principles and non-legislative initiatives has grown alongside the UK legislative framework that is increasingly effective at filling this gap. Firstly, the AllTrials Initiative was developed to combat publication bias, resulting in an increasing number of journals dedicated to publishing negative and unexpected clinical trial results, such as the Journal of Negative Results in Biomedicine and the All Results Journal. Likewise, Article 36 of the 2008 and 2013 versions of the Declaration of Helsinki66 stipulate the ethical requirement to publish negative or inconclusive results; although $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 57

House of Commons Science and Technology Committee (n 56) 2. ibid 4. 59 ibid 3-4. 60 (n 1), Explanatory Note. 61 Council Regulation No 536/2014 of 16 April 2014 on clinical trials on medicinal products for human use [2014] OJ L 158/1. 62 NHS European Office, 'The New EU Clinical Trials Regulation: Briefing September 2014' (2014) <http://www.nhsconfed.org/~/media/Confederation/Files/Publications/Documents/eu-clinical-trialsregulation-2014.pdf> accessed 4 January 2016. 63 P Border (n35) 2. 64 NHS European Office, 'The New EU Clinical Trials Regulation: Briefing September 2014' (2014), 3. 65 House of Commons Science and Technology Committee, 'Written Evidence Submitted By Dr Ben Goldacre' (2013) <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmsctech/104/104we18.htm> accessed 2 January 2016. 66 World Medical Association, ‘Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects’ (18th WMA General Assembly, Helsinki, 1964, 2008 and 2013 revisions). 58

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The UK Regulations only implement the 1996 version of the Declaration,67 EU Regulation 546/2014 refers to the 2008 version.68 Consequently, the regulation’s transparency principles, based upon this earlier version, are directly effective within the UK. Furthermore, the EMA’s revised policy on clinical trial publication,69 effective as of January 2015, ensures that researchers make all study reports for drugs to be marketed within the EU available and viewable by registered users. The combined effect of these supplementary initiatives is a sufficient, unbiased body of accessible information upon which properly informed decisions might confidently be based. B. Conflicts of Interest The dubious ethical position of a physician acting simultaneously as a child’s doctor and as a trial investigator is addressed in schedule 1 of the UK Regulations, which stipulates that a child’s “legal representative” (who provides proxy consent) must not be a person “involved in the conduct of the trial.”70This includes “a person connected with the conduct of the trial” such as71 “the sponsor of the trial,”72 “an employee” of the sponsor,73“an investigator for the trial”,74or “a member of an investigator’s team,”75 which necessarily precludes an investigating physician from providing this consent. However, this measure does not regulate the practical influence that an investigating physician may have over a parent’s proxy consent. In response to this problem, the UK Regulations stipulate that the child’s “legal representative” must have an “interview with the investigator” in order to “understand the objectives, risks and inconveniences of the trial.”76 Furthermore, an ethics committee must approve the trial77 having regard to the considerations set out in part 3 of the UK Regulations.78 In paediatric trials the most important of these will be: the suitability of the investigator;79 the suitability of the investigator’s brochure;80 the adequacy of the written information given for the purpose of obtaining informed consent;81 and the amount of compensation and reward paid to the investigator.82 In addition, the UK Regulations stipulate that no incentives or financial inducements may be given to the minor involved in the trial or to a person with parental responsibility for that minor.83 $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 67

(n 1), sched 1, part 1, para 2. Council Regulation (n 61) 10, para 80. 69 European Medicines Agency, 'European Medicines Agency Policy On Publication Of Clinical Data For Medicinal Products For Human Use' (2014) <http://www.ema.europa.eu/docs/en_GB/document_library/Other/2014/10/WC500174796.pdf> accessed 7 January 2016. 70 (n1), sched 1, part 1, para 2(a). 71 ibid, sched 1, part 1, para 2. 72 ibid, sched 1, part 1, para 2(a). 73 ibid, sched 1, part 1, para 2(b). 74 ibid, sched 1, part 1, para 2(c). 75 ibid, sched 1, part 1, para 2(d). 76 ibid, sched 1, part 4, para 1. 77 ibid, s12(3)(a). 78 ibid, s15(5). 79 ibid, s15(5)(d). 80 ibid, s15(5)(e). 81 ibid, s15(5)(g). 82 ibid, s15(5)(k). 83 ibid, sched 1, part 4, para 8. 68

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The prohibition of proxy consent being given by an investigating physician and the ethical review of their remuneration largely protects against undue financial interests. However, identification and regulation of inappropriate professional interests is considerably harder to achieve. The only sufficient remedy in this respect to safeguard properly-informed consent is to provide the child’s legal representative with adequate, independent information. However, I have previously addressed the inadequacy of the patient information leaflets, which in theory fulfil this function, leaving parents to fall back on the investigating physician’s opinion. Flory and Emmanuel identified enhancement of these leaflets as key to safeguarding informed consent,84 concluding that the most significant changes needed to come not from aesthetics (font, colours, graphics) but from simplified and condensed content.85 Therefore, improved access to simplified, intelligible and neutral information in this manner would inevitably optimise the ability of parents to give ethically sound proxy consent. Consequently, significantly greater protection would be afforded to the child’s Article 8 right because clinical trial participation could confidently be defended as proportional in pursuance of their healthcare. C. ‘Direct Benefit’ and the Risk/Benefit Ratio The UK Regulations stipulate that paediatric clinical trials must provide a direct benefit to the group of patients involved in the trial86 and that a trial should only proceed if the anticipated benefits outweigh the risks.87 However, these requirements are flawed because clinical trials are inherently experimental.88 This is magnified in Phase I trials relating to diseases that occur solely or differently in children89 because it will always be difficult if not impossible to guarantee this direct benefit. Reye’s syndrome is a clear example of this.90 Despite aspirin having no serious side effects in adults, clinical trials revealed its connection with the condition in children under twelve. Furthermore, for rare diseases, clinical trials may be a child’s last resort,91 yet this desperate position will not satisfy the ‘direct benefit’ requirement, making it difficult to reconcile this standard with the Article 24 UNCRC right of these children to the “best healthcare possible.” ‘Direct Benefit’ is at odds with most other international guidelines. It does not resemble the therapeutic/non-therapeutic distinction within the 1996 Declaration of Helsinki (upon which The UK Regulations are based), which precludes minors from non-therapeutic trials because of their lack of voluntary consent.92 It also does not resemble the standard under the 2008 Declaration of Helsinki93 and the Oviedo $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 84

James Flory and Ezekiel Emanuel, 'Interventions To Improve Research Participants' Understanding In Informed Consent For Research' (2004) 292 Journal of the American Medical Association 1593. 85 Vincent Yeung, ‘Clinical Trials In Children' in Ian Costello, Paul F Long, Ian K Wong, Catherine Tuleu, Vincent Yeung (eds), Pediatric Drug Handling (1st edn, Pharmaceutical Press 2007) 99. 86 (n 1), sched 1, part 4, para 10. 87 ibid, sched 1, part 2, s 2. 88 Cave (n 32), 19. 89 ibid 4. 90 Edwards and McNamee (n 7) 351. 91 Cave (n 88) 25. 92 ibid, 16. 93 See World Medical Association, ‘World Medical Association Declaration of Helsinki Ethical Principles for Medical Research Involving Human Subjects’ (59th WMA General Assembly, Seoul October 2008) para 27.

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Convention,94 which allow minimal harm to minors if the trial is intended to promote the health of the population that they represent. This approach would inevitably facilitate paediatric clinical trials, however allowing justification based upon ‘the population represented’ may be too permissive as it inherently undermines the Kantian imperative by treating the child subject as a means to an end, making it very hard to justify derogation from their Article 8 right upon this basis. A mid-way solution between ‘direct benefit’ and ‘minimal harm’ is the standard adopted in The UK Regulations for incapacitated adults. Despite their similar reliance upon proxy consent, clinical trials on incapacitated adults must simply not harm the subject, making a neutral outcome permissible.95 If adopted for paediatric trials, children’s safety or well-being would not be medically compromised, yet their rights to at least the hope of successful medical treatment would be significantly increased. Alternatively, further paediatric clinical trials could be facilitated through a wider reading of “direct benefit.” King96 recognises the existence of both ‘collateral benefits’ (incidental benefits such as constant monitoring of health by professionals) and ‘aspirational benefits’ (benefits to society at large and of altruism.) However, The UK Regulations recognise neither of these non-medical benefits in interpreting ‘direct benefit.’97 If this restrictive interpretation is to be upheld, it is difficult to see how extending the requirement of ‘no harm’ to paediatric trials would prove any worse than ‘direct benefit’; although there are inevitably negative factors of participation in a paediatric clinical trial which only achieves neutral results, such as the physical and psychological strain of participation, if these non-medical considerations are not given any weight for the purpose of assessing benefit,98 it seems inconsistent to give regard to them in assessing detriment. 5. FURTHER SOLUTIONS The dual effect of the restrictive direct benefit test and commercial disincentives for paediatric clinical trials is that too few drugs are licensed for paediatric use, with less than 30 cent of EU marketed drugs including paediatric trial results.99 Commercial interests provide vital contributions to children’s access to healthcare through funding and expertise. Therefore children’s right safety and wellbeing are best served by endorsing these benefits, whilst balancing them with adequate ethical and transparency regulation.

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Council of Europe, ‘Convention for the Protection of Human Rights and of the Human Being with regard to the Application of Biology and Medicine’ (Oviedo, 4 April 1997) art 17(2). 95 (n 1), sched 1, part 5, para 9. 96 Nancy MP King, 'Defining And Describing Benefit Appropriately In Clinical Trials' (2000) 28 Law, Medicine & Ethics 332. 97 Cave (n 32) 25. 98 ibid 25. 99 Carissa M Baker-Smith and others, 'The Economic Returns Of Pediatric Clinical Trials Of Antihypertensive Drugs' (2008) 156 American Heart Journal 682.

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A. Commercially Sensitive Transparency Strict ‘open access’ transparency100 is inconsistent with commercial interests due to the risks of sharing sensitive manufacturing information101 and intellectual property102 and the risk of inaccurate re-analysis of results,103which could impact upon sponsors’ share value.104 However, this transparency is nonetheless vital for defensible paediatric clinical trials. EU Regulation 546/2014 represents a significant development due to its commercially sensitive approach to transparency. Whilst creating an EU portal105 and an EU database,106 Article 81(4)(b) provides a proviso whereby the EMA’s Paediatric Committee (PDCO) may allow commercially confidential information to be withheld. However, the Coordination of Research on Priority Medicines for Children (ERA-NET PRIOMEDCHILD) has recommended that the PDCO’s decision should be more transparent.107 An alternative to a complete waiver could be achieved through the furtherance of data sharing initiatives such as ‘black box’ and ‘gatekeeper’ systems.108 Although some information will inevitably need to be withheld under Article 81, most sensitive information could be dealt with using a ‘gatekeeper’ to grant applicants access to data within an online ‘safe haven’109 upon a review of their project plan and confidentiality commitments.110Alternatively, for more sensitive information a ‘black box’ system, whereby information may be obtained regarding a specific research question, could be employed. The ultimate solution would be to use these initiatives within a global data repository in order to ensure harmonised, comprehensive and commercially sensitive transparency.111 As long as transparency is sufficient to ensure properly informed consent, prioritisation should move towards incentivising paediatric clinical trials in order to widen the availability of innovative and potentially lifesaving112 paediatric drugs. Onerous regulations, combined with financial disincentives for paediatric trials, mean that medicine used in ninety per cent of neonatal care, forty-five per cent of paediatric care and between ten and twenty per cent of general paediatric practice is unlicensed

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Robin Jenkins and Joe Morrell, 'Clinical Trial Data Sharing: Landscape, Trends, And Risks' (Pharmaceutical Compliance Monitor, 2014) <http://www.pharmacompliancemonitor.com/clinicaltrial-data-sharing-landscape-trends-risks/8230/> accessed 12 March 2016. 101 P Border (n 35). 102 Jenkins and Morrell (n 100). 103 ibid. 104 Jeffrey M Rothenstein and others, 'Company Stock Prices Before And After Public Announcements Related To Oncology Drugs' (2011) 103 Journal of the National Cancer Institute 1507. 105 Council Regulation (n 61), art 80. 106 ibid, art 81. 107 Anne-Laure Knellwolf and others, 'Framework Conditions Facilitating Paediatric Clinical Research' (2011) 37 Italian Journal of Pediatrics 12. 108 ibid. 109 Border (n 35). 110 Faculty of Pharmaceutical Medicine of the Royal Colleges of Physicians of the United Kingdom, 'Faculty Of Pharmaceutical Medicine Survey Of Members On Transparency In Clinical Trials: Analysis Report' (2014) <https://www.fpm.org.uk/policypublications/clintrialsurveyreport> accessed 1 February 2016. 111 Border (n 35). 112 Sarah Boseley, 'Children With Cancer Being Denied Life-Saving Drugs, Scientists Say' the Guardian (London, 2014) <http://www.theguardian.com/society/2014/feb/10/children-cancer-deniedlife-saving-drugs-eu-regulations. > accessed 17 November 2015.

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or off-label.113 In commonly used off-label medicines there will be consensus upon the appropriate dosage,114 however in more rare illnesses this will not be the case. Children have significant metabolic differences and so dosage will be unchartered.115 The risks involved in unlicensed prescriptions for rare illnesses are comparable to those in clinical trials but without any ethical approval, agreed protocols or formal publication.116 B. Financial Incentives The most obvious way to incentivise paediatric clinical trials is through financial incentives. Providing incentives to parents or children would undermine informed consent,117 as reflected in the UK Regulations.118 A more ethically sound solution is to provide these incentives to trial sponsors. An example of this is the ‘Pediatric Exclusivity Programme’, introduced by The United States in 1997, which granted a six-month patent extension for paediatric clinical trial conduct.119 Subsequently, the EU has introduced a similar extension in the form of ‘Paediatric Investigation Plans’ (PIPs) under EU regulation 1901/2006.120 The same regulation established Paediatric Use Marketing Authorisation (PUMA), another financial incentive that grants tenyear marketing exclusivity for studies conducted in line with a PIP.121 Although financial incentives are effective for encouraging paediatric trials on drugs initially only licensed for adults, some trials will never be lucrative. In these areas the most suitable solution is to supplement commercial funding with non-commercial trials. C. Non-commercial Clinical Trials Non-commercial trials entail independent bodies such as charities and publically funded organisations, including the National Institute for Health Research (NIHR) and the Medical Research Council (MRC), setting research priorities in response to gaps in research.122 Although this solution provides optimum independence, production of a single drug is estimated to cost £600 million.123 Combined with NHS budget cuts, it is unrealistic to place too much reliance upon public investment in Research and Development (R&D). In the UK only 10 per cent of funding is provided by the NHS, 11 per cent by the Medical Research Council and 8 per cent by charities, $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 113

The Association of British Pharmaceutical Industry, 'Current Issues In Paediatric Clinical Trial: A Meeting Held At The Royal College Of Obstetricians' (2005) 14 <http://www.abpi.org.uk/ourwork/library/medical-disease/Documents/peadiatric-clinical-trials.pdf> accessed 4 November 2015. 114 ibid 23. 115 Richard Nicholson, Medical Research With Children (OUP 1986) 23. 116 ibid. 117 Jessica Fuhl, 'The Role Of Commercial Trials In The NHS: Live Discussion Roundup' the Guardian (London, 2012) <http://www.theguardian.com/healthcare-network/nihr-crn-partner-zone/commercialtrials-nhs-discussion-roundup> accessed 1 March 2016. 118 (n 1), sched 1, part 4, para 8. 119 Li and others (n 20) 480. 120 Council Regulation No 1901/2006 of 12 December 2006 on medicinal products for paediatric use and amending Regulation (EEC) No 1768/92, Directive 2001/20/EC, Directive 2001/83/EC and Regulation (EC) No 726/2004 [2006] OJ L 378/1, art 26. 121 Knellwolf and others (n 107) 12. 122 Every-Palmer and Howick, (n 14) 912. 123 Becky Purvis, 'Are Commercial Trials Of New Drugs And Treatments Important To The NHS?' (Association Of Medical Research Charities 2012) <http://www.amrc.org.uk/blog/are-commercialtrials-new-drugs-and-treatments-important-nhs> accessed 12 November 2015.

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compared to 70 per cent from the industry,124 supporting the Chief Executive of the NIHR, Jonathan Sheffield’s, assertion that “the public sector does not have the resource to invest that heavily in drug development and so we need private finance to deliver this work.”125 D. Public/Private Partnership Partnership research, based upon public/private collaboration, provides a compromise between the financial necessity of industry funding and the desirable independence of non-commercial trials. A study by ERA-NET PrioMedChild126 found that collaboration is attractive to non-commercial bodies because of the funding potential and to commercial bodies because of the logistical advantages such as patient recruitment, with both groups agreeing that “access to recent improvement in knowledge of the disease and its development”127 and “access to the know-how”128 was increased. Furthermore, the opportunity to share financial risks associated with repurposing existing drugs129 is another clear advantage. Consequently, increased funding, neutrality and knowledge through partnership will inevitably enhance innovative paediatric healthcare. The UK Clinical Research Collaboration and the ‘Children Speciality’ coordinate the activities of commercial and non-commercial stakeholders in UK paediatric clinical research. Similarly, at the EU level, ERA-NET PrioMedChild implements a European joint research programme,130 to which the UK’s Medical Research Council is a participant. Furthermore, in June 2014, the European Network of Paediatric Research at the European Medicines Agency (Enpr-EMA) began collaboration with US paediatric research initiatives.131 These developments are significant because more extensive collaboration inevitably maximises the benefits of partnership. Despite this EU-wide progress, the most extensive partnership, in the form of a heterogeneously sponsored132 (public/private) ‘Global Pediatric Clinical Research Network’133 remains to be achieved. This solution would optimise the advantages of public-private partnership through the creation of permanent international research sites with: scientific, medical and operational support;134 access to paediatric expertise and funds; and streamlined regulatory and transparency procedures.135 This funding, infrastructure and expertise would represent the ultimate facilitation of paediatric $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 124

UK Clinical Research Collaboration (n 15) 12. Purvis (n 123). 126 Priority Medicines for Children (n 21). 127 ibid 8. 128 ibid. 129 Warren Kaplan and others, 'Priority Medicines For Europe And The World 2013 Update' (World Health Organisation 2013) 186 <http://www.who.int/medicines/areas/priority_medicines/MasterDocJune28_FINAL_Web.pdf> accessed 12 January 2016. 130 Knellwolf and others (n 107) 12. 131 Priority Medicines for Children (n 21). 132 William R Treem, 'Proposed Global Pediatric Clinical Trials Network' (European Medicines Agency 2015) <http://www.ema.europa.eu/docs/en_GB/document_library/Presentation/2015/06/WC500188664.pdf> accessed 12 December 2015. 133 ibid. 134 Clifford Bogue and others, 'Special Article: 2014 Pediatric Clinical Trials Forum' (2014) 79 Pediatric Research 662. 135 Thompson and Treem (n 22). 125

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clinical research whilst simultaneously providing sufficient independence and regulation to overcome the “credibility gap”136 arising from unchecked commercial interests. However, this network is yet to be realised, with the AAP Paediatric Clinical Trials Stakeholders’ Forum concluding in November 2014 that onerous administrative procedures and a lack of “robust, publically available data” were still providing significant barriers to paediatric clinical trials.137 6. CONCLUSION Cave describes informed consent as the “cornerstone of ethical research.”138 Consequently, a well-founded basis for proxy consent in paediatric clinical trials is vital to proportionally justify the derogation from a child’s Article 8 right upon the grounds of pursuance of their health.139 The UK Regulations, combined with ethical approval policy, non-legislative initiatives and EU law, represent a comprehensive framework in which to regulate undue commercial interests and safeguard children from the dangers of uninformed proxy consent. This framework could be fine-tuned through initiatives such as the simplification of patient information leaflets, however the absence of sufficient commercial funding for paediatric clinical trials and the consequent prevalence of unlicensed medicine provides the greatest risk to children’s safety and a breach of their UNCRC Right to the “best healthcare possible.”140 This reality is a result of the restrictive direct benefit test, onerous regulatory requirements and the inherent financial disincentive for paediatric clinical trials. Consequently, the principle in the UK Regulations that “the rights, safety, and wellbeing of the trial subjects” should “prevail over” those of “science and society”141 seems unrealistic and unbeneficial to children. Conversely, industry funding and thus respect for their interests are vital prerequisites of adequate paediatric trials and, therefore, should be attributed equal importance as that given to children’s rights, safety and wellbeing, in recognition of their existence as mutually beneficial entities. In this context, transparent, harmonised and commercially sensitive paediatric clinical trials are optimised through public/private collaboration. EU Regulation 1901/2006 and 546/2014 go some way towards achieving this streamlined, commercially realistic approach and ERA-NET PrioMedChild is an effective starting point for partnership. However, a ‘Global Paediatric Clinical Research Network’ represents the ultimate equilibrium between the interests of children and the commercial interests of the industry, which would incentivise paediatric clinical trials in an ethically sound manner in order to ensure that the protection of children’s rights, safety and wellbeing is no longer a game of “roulette.”142

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Bethold Koletzko and others, 'Public/Private Collaboration In Clinical Research During Pregnancy, Lactation, And Childhood' (2014) 58 Journal of Paediatric Gastroenterology and Nutrition 525. 137 Bogue and others (n 134). 138 Cave (n 32), 2. 139 Council of Europe (n 94) art 8(2). 140 United Nations Convention on the Rights of the Child (n 12), art 24. 141 (n 1), sched 1, part 2, para 3. 142 Association of British Pharmaceutical Industry, 'Current Issues In Paediatric Clinical Trial: A Meeting Held At The Royal College Of Obstetricians' (2005) 9 <http://www.abpi.org.uk/ourwork/library/medical-disease/Documents/peadiatric-clinical-trials.pdf> accessed 4 November 2015.

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Primary Sources Cases Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 House of Lords Legislation Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Article 8. Council of Europe, Convention for the Protection of Human Rights and of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine or the Oviedo Convention) (CETS n. 164), adopted in Oviedo on April 4, 1997. Directive 2001/20/EC of the European Parliament and of the Council of 4 April 2001 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use. Medicines for Human Use (Clinical Trials) Regulations 2004. Regulation (EC) No 1901/2006 of The European parliament and of the Council of 12 December 2006 on medicinal products for paediatric use. Regulation (EU) No 536/2014 of the European Parliament and of the Council of 16 April 2014 on clinical trials on medicinal products for human use. The World Medical Associationâ&#x20AC;&#x2122;s Declaration of Helsinki â&#x20AC;&#x201C; Ethical Principles for Medical Research Involving Human Subjects adopted by the 18th WMA General Assembly, Helsinki, Finland, June 1964 (as amended). United Nations Convention on the Rights of the Child (1989) (UNCRC) Article 24. Secondary Sources Baker-Smith C and others, 'The Economic Returns Of Pediatric Clinical Trials Of Antihypertensive Drugs' (2008) 156 American Heart Journal 682. Bogue C and others, 'Special Article: 2014 Pediatric Clinical Trials Forum' [2014] Pediatric Research <http://www.nature.com/pr/journal/vaop/ncurrent/full/pr2015255a.html> accessed 1 February 2016. Border P, Transparency Of Clinical Trials Data (1st edition, Parliamentary Office of Science and Technology 2014)

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<http://researchbriefings.files.parliament.uk/documents/POST-PN-461/POST-PN461.pdf> accessed 9 December 2015. Boseley S, 'Children With Cancer Being Denied Life-Saving Drugs, Scientists Say' (the Guardian, 2014) <http://www.theguardian.com/society/2014/feb/10/childrencancer-denied-life-saving-drugs-eu-regulations. > accessed 17 November 2015. Bourgeois F and others, 'Pediatric Versus Adult Drug Trials For Conditions With High Pediatric Disease Burden' (2012) 130 Pediatrics 285. Bourgeois F, 'Outcome Reporting Among Drug Trials Clinicaltrials.Gov' (2010) 153 Annals of Internal Medicine 158.

Registered

Brown J, 'Politics, Method, And Medical Research' (2008) 75 Philosophy of Science 756. Cave E, 'Seen But Not Heard? Children In Clinical Trials' (2010) 18 Medical Law Review 1. Chopra S, 'Industry Funding Of Clinical Trials: Benefit Or Bias?' (2003) 290 Journal of the American Medical Association 113. Cooney G, 'Exercise For Depressionâ&#x20AC;&#x2122; (2013) National Center for Biotechnology Information, 12 PubMed <http://www.ncbi.nlm.nih.gov/pubmed/24026850> accessed 4 January 2016. Davidson R, 'Source Of Funding And Outcome Of Clinical Trials' (1986) 1 Journal of General Internal Medicine 155. Davies S, 'The New R&D Agenda: The NHS Contribution', Delivering Quality in the NHS 2005 (1st edition, Radcliffe Publishing 2005). Department of Health, 'Governance Arrangements For Research Ethics Committees: A Harmonised Edition' (2011) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/2137 53/dh_133993.pdf> accessed 3 December 2015. Doshi P and Jefferson T, 'Clinical Study Reports Of Randomised Controlled Trials: An Exploratory Review Of Previously Confidential Industry Reports' (2013) 3 British Medical Journal e002496. Edwards S and McNamee M, 'Ethical Concerns Regarding Guidelines For The Conduct Of Clinical Research On Children' (2005) 31 Journal of Medical Ethics 351. English R, Lebovitz Y and Griffin RB, Transforming Clinical Research In The United States (National Academies Press 2010). Egger M, Bartlett C and Juni P, 'Are Randomised Controlled Trials In The BMJ Different?' (2001) 323 British Medical Journal 1253.

BLR$Vol$4$

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Elliott C, White Coat, Black Hat (Beacon Press 2010). European Medicines Agency (EMA), 'The European regulatory system for medicines and the European Medicines Agency: A Consistent Approach to Medicines Regulation Across The European Union' (2014) <http://www.ema.europa.eu/docs/en_GB/document_library/Brochure/2014/08/WC50 0171674.pdf> accessed 16 February 2016. European Medicines Agency (EMA), 'European Medicines Agency Policy On Publication Of Clinical Data For Medicinal Products For Human Use' (2014) <http://www.ema.europa.eu/docs/en_GB/document_library/Other/2014/10/WC50017 4796.pdf> accessed 7 January 2016. Every-Palmer S and Howick J, 'How Evidence-Based Medicine Is Failing Due To Biased Trials And Selective Publication' (2014) 20 Journal of Evaluation in Clinical Practice 908. Faculty of Pharmaceutical Medicine of the Royal Colleges of Physicians of the United Kingdom, 'Faculty Of Pharmaceutical Medicine Survey Of Members On Transparency In Clinical Trials: Analysis Report' (2014) <https://www.fpm.org.uk/policypublications/clintrialsurveyreport> accessed 1 February 2016. Flory J and Emanuel E, 'Interventions To Improve Research Participants' Understanding In Informed Consent For Research' (2004) 292 JAMA 1593 Fortin J, 'Accommodating Children's Rights In A Post Human Rights Act Era' (2006) 69 Modern Law Review 299. Freeman M, 'The Human Rights Of Children' (2010) 63 Current Legal Problems 1 Fuhl J, 'The Role Of Commercial Trials In The NHS: Live Discussion Roundup' (the Guardian, 2012) <http://www.theguardian.com/healthcare-network/nihr-crn-partnerzone/commercial-trials-nhs-discussion-roundup> accessed 1 March 2016. Hall A, 'Children’s Rights, Parent’s Wishes And The State: The Medical Treatment Of Children' (2006) 36 Family Law 317. Heres S and others, 'Why Olanzapine Beats Risperidone, Risperidone Beats Quetiapine, And Quetiapine Beats Olanzapine: An Exploratory Analysis Of Head-ToHead Comparison Studies Of Second-Generation Antipsychotics' (2006) 163 American Journal of Psychiatry 185. House of Commons Science and Technology Committee, 'Written Evidence Submitted By Sir Alasdair Breckenridge' (2013) <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmsctech/104/104vw 15.htm> accessed 12 January 2016. House of Commons Science and Technology Committee, 'Written Evidence Submitted By Dr Ben Goldacre' (2013) <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmsctech/104/104we 18.htm> accessed 2 January 2016.

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House of Commons Science and Technology Committee, 'Clinical Trials: Third Report Of Session 2013-14' (2014) <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmsctech/104/10404. htm> accessed 5 February 2016. Jenkins R, Sanofi U and Morrell J, 'Clinical Trial Data Sharing: Landscape, Trends, And Risks' (Pharmaceutical Compliance Monitor, 2014) <http://www.pharmacompliancemonitor.com/clinical-trial-data-sharing-landscapetrends-risks/8230/> accessed 12 March 2016. Kaplan W and others, 'Priority Medicines For Europe And The World 2013 Update' (World Health Organisation 2013) <http://www.who.int/medicines/areas/priority_medicines/MasterDocJune28_FINAL_ Web.pdf> accessed 12 January 2016. Kimmelman J and Palmour N, 'Therapeutic Optimism In The Consent Forms Of Phase 1 Gene Transfer Trials: An Empirical Analysis' (2005) 31 Journal of Medical Ethics 209. King N, 'Defining And Describing Benefit Appropriately In Clinical Trials' (2000) 28 The Journal of Law, Medicine & Ethics 332. Knellwolf A and others, 'Framework Conditions Facilitating Paediatric Clinical Research' (2011) 37 Italian Journal of Pediatrics 12. Koletzko B and others, 'Public/Private Collaboration In Clinical Research During Pregnancy, Lactation, And Childhood' (2014) 58 Journal of Pediatric Gastroenterology and Nutrition 525. Lenzer J, 'Manufacturer Admits Increase In Suicidal Behavior In Patients Taking Paroxetine' (2006) 332 British Medical Journal 1175. Li J and others, 'Economic Return Of Clinical Trials Performed Under The Pediatric Exclusivity Program' (2007) 297 The Journal of the American Medical Association 480. Lidz C and others, 'Therapeutic Misconception And The Appreciation Of Risks In Clinical Trials' (2004) 58 Social Science & Medicine 1689. Mathers N and Gray D, 'Cutting The Cake: Allocation Of NHS Research And Development Funding' (2005) 44 The British Journal of General Practice 827. Miller F and Brody H, 'A Critique Of Clinical Equipoise: Therapeutic Misconception In The Ethics Of Clinical Trials' (2003) 33 The Hastings Center Report 19. NHS European Office, 'The New EU Clinical Trials Regulation: Briefing September 2014' (2014) <http://www.nhsconfed.org/~/media/Confederation/Files/Publications/Documents/euclinical-trials-regulation-2014.pdf> accessed 4 January 2016.

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Nicholson R, Medical Research With Children (Oxford University Press 1986) Pharmaceutical Product Development, 'Advantages Of Being A Clinical Trial Investigator' <http://www.ppdi.com/Participate-In-Clinical-Trials/Become-anInvestigator/Advantages> accessed 3 March 2016. Priority Medicines for Children (ERA-NET PrioMedChild), 'Public-Private Cooperation In Medicines For Children Research: Identification Of Opportunities And Barriers For Public-Private Cooperation' (2008) <http://www.priomedchild.eu/fileadmin/cm/wetenschap_en_innovatie/priomedchild/ Deliverable%204.2.pdf> accessed 5 January 2016. Purvis B, 'Are Commercial Trials Of New Drugs And Treatments Important To The NHS? | AMRC - Association Of Medical Research Charities' (2012) <http://www.amrc.org.uk/blog/are-commercial-trials-new-drugs-and-treatmentsimportant-nhs> accessed 12 November 2015. Rao J and Sant Cassia L, 'Ethics Of Undisclosed Payments To Doctors Recruiting Patients In Clinical Trials' (2002) 325 British Medical Journal 36. Roehr B, 'GlaxoSmithKline Is Fined Record $3Bn In US' (2012) 345 British Medical Journal e4568. Rothenstein J and others, 'Company Stock Prices Before And After Public Announcements Related To Oncology Drugs' (2011) 103 JNCI Journal of the National Cancer Institute 1507. Schwartz L, Woloshin S and Black W, 'The Role Of Numeracy In Understanding The Benefit Of Screening Mammography' (1997) 127 Annals of Internal Medicine 966. Shilling V and Young B, 'How Do Parents Experience Being Asked To Enter A Child In A Randomised Controlled Trial?' (2009) 10 BMC Medical Ethics 1. Silversides A, 'Clinical Trial Participation Poses Ethical, Practical Issues' (2009) 180 Canadian Medical Association Journal 500. Smith R, 'Medical Journals Are An Extension Of The Marketing Arm Of Pharmaceutical Companies' (2005) 2 PLOS Medicine e138. Song F and others, 'Dissemination And Publication Of Research Findings: An Updated Review Of Related Biases' (2010) 14 Health Technology Assessment 1. Tarnowski K, Allen D and Mayhall C, 'Readability Of Paediatric Biomedical Research Informed Consent Forms' (1990) 65 Pediatrics 58. The Association of British Pharmaceutical Industry, 'Current Issues In Paediatric Clinical Trial: A Meeting Held At The Royal College Of Obstetricians' (2005) <http://www.abpi.org.uk/our-work/library/medical-disease/Documents/peadiatricclinical-trials.pdf> accessed 4 November 2015.

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Thompson C and Treem W, 'Opportunities For Public-Private Partnerships In Paediatric Clinical Research' (2012) <http://www.ema.europa.eu/docs/en_GB/document_library/Presentation/2014/07/WC 500169607.pdf> accessed 1 November 2015. Treem W, 'Proposed Global Pediatric Clinical Trials Network' (European Medicines Agency 2015) <http://www.ema.europa.eu/docs/en_GB/document_library/Presentation/2015/06/WC 500188664.pdf> accessed 12 December 2015. UK Clinical Research Collaboration (UKCRC), 'Clinical Research In The UK: Towards A Single System That Reliably Delivers Distinctive Quality And Rapid Access At Reasonable Cost' (2005) <http://www.ukcrc.org/wpcontent/uploads/2014/09/McKinsey-Study-FINAL-Report-23.8.05.pdf> accessed 12 January 2016. US Department of Health and Human Services, 'The Pediatric Exclusivity Provision: January 2001 Status Report To Congress' (2001) <http://www.fda.gov/downloads/Drugs/DevelopmentApprovalProcess/DevelopmentR esources/UCM049915.pdf> accessed 7 February 2016. US Department of Health and Human Subjects, 'Pressures In Industry-Sponsored Clinical Research' (2000) <http://oig.hhs.gov/oei/reports/oei-01-97-00195.pdf> accessed 4 February 2016. Van Stuijvenberg M and others, 'Informed Consent, Parental Awareness, And Reasons For Participating In A Randomised Controlled Study' (1998) 79 Archives of Disease in Childhood 120. Yaphe J and others, 'The Association Between Funding By Commercial Interests And Study Outcome In Randomized Controlled Drug Trials' (2001) 18 Family Practice 565. Yeung V, 'Chapter 6: Clinical Trials In Children', Pediatric Drug Handling (1st edition, Pharmaceutical Press 2007).

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£1-AN-HOUR JOBS: FEARS OF FORCED LABOUR PRACTICES MATERIALISING IN UK IMMIGRATION REMOVAL CENTRES Serena Crawshay-Williams Under the ILO Protocol 2014 to the Forced Labour Convention, ratifying States must “address the root causes and factors that heighten the risk of forced labour.” This progressive approach requires States to tackle forced labour by addressing its systemic and structural factors, as opposed to just using the criminal law to deter perpetrators. Examining the prevention duty in the context of the UK detention estate, this article assesses abusive £1.00 per hour wages and the excruciating vulnerability experienced by detainees at the hands of privately run immigration removal centres. It is argued that the UK Government is complicit in creating a highly exploitative environment in which detainees have a substantial risk of becoming victims of forced labour. Keywords: International Labour Organization, Modern Slavery, Forced Labour, Immigration Removal Centre 1. INTRODUCTION “The Protocol and Recommendation represent a call to action. They go beyond pious words; they are more than text on a piece of paper.” –Edward Potter, Employer Vice-Chairman at the 103rd International Labour Conference Session1 “There is a serious procedure for signing this kind of document – which is particularly appropriate given the serious subject matter – and the UK Government does not sign up to international agreements until we know we can deliver what we have agreed to.” –Karen Bradley, Minister for Preventing Abuse and Exploitation2 Slavery is the most profitable and fastest growing crime that continues to haunt the 21st century. With over 35 million victims worldwide,3 the modern-day slave trade generated $150 billion in illicit profits in 2015.4 Focusing on one facet of modern slavery, this article examines the International Labour Organization’s (ILO) attempts to abolish forced labour through the adoption of legally binding international instruments. The ILO Forced Labour Convention, 1930 (No 29) (the Convention) requires all ratifying States to suppress forced labour, defined as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”5 Supplementing the Convention, the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1

Edward E Potter, ‘Forced Labor Plenary Statement’ (103rd International Labour Conference Session, Geneva, ILO 9 June 2014) 4 <https://www.uscib.org/docs/2014_06_09_ILO_Potter_Statement.pdf> 22 February 2016. 2 Karen Bradley, ‘Karen Signs ILO Protocol On Forced Labour’ (Karen Bradley MP, 25 January 2016) <www.karenbradley.co.uk/news/karen-signs-ilo-protocol-forced-labour> accessed 23 February 2016. 3 Pablo Diego-Rosell and Jacqueline Joudo Larsen, ‘35.8 Million Adults and Children in Slavery Worldwide’ (Gallup, 17 November 2014) <www.gallup.com/poll/179459/million-adults-childrenslavery-worldwide.aspx> accessed 28 February 2016. 4 International Labour Office, ‘Profits and Poverty: The Economics of Forced Labour’ (ILO 2014) 13. 5 ILO Convention C029 – Forced Labour Convention, 1930 (No 29), art 2(1).

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new ILO Protocol 29 of the Forced Labour Convention (the Protocol), adopts a progressive preventive approach, emphasising the vulnerability of migrant workers who are often “exposed to unnecessary risk”.6 The reference to migrant workers reflects an increasing distinction between ‘human’ and ‘citizen’ rights whereby governments deliberately deny migrants basic legal protections, which makes them particularly susceptible to forced labour.7 In the UK, migrants are often deprived of their liberty and confined inside immigration removal centres (IRCs) for administrative purposes.8 The detention of “undesirable”9 immigrants began in the 1980s and now over 30,400 people are detained in the UK.10 Within the confines of IRCs, a secret workforce is beginning to emerge in which detainees are paid just £1.00 or £1.25 an hour to work for private companies.11 While the general poor treatment of detainees in IRCs is well documented,12 these abusive wage rates have received comparatively little scrutiny, largely because they have statutory approval.13 This article seeks to draw attention to these inappropriate wages by assessing the legitimacy of the work regime in the context of the new ILO Protocol, ratified by the UK in January 2016.14 In the following sections, it is argued that the UK Government is complicit in the creation of an exploitative environment in which detained asylum seekers have a high risk of becoming victims of forced labour. First, the UK’s legal obligations under the ILO framework are set out. In particular, attention is drawn to the prevention duty imposed in the newly ratified Protocol, requiring Governments to prevent modern slavery by “addressing the root causes and factors that heighten the risk of forced labour.”15 Second, five factors that heighten the risk of forced labour in IRCs are identified: privatisation of detention management, sub-standard working conditions, threats of violence, threats concerning deportation and mental health concerns. Examining each factor in turn, it is argued that the UK Government has failed to address the vulnerabilities of detainees in detention centres and is consequently in breach of its duties under the ILO Protocol.

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International Labour Office, ‘Report IV(1): Strengthening action to end forced labour’ (103rd International Labour Conference Session, Geneva, ILO 2014) 26. 7 Bridget Anderson, ‘Illegal immigrant: Victim or Villain?’ (2008) University of Oxford Centre on Migration, Policy and Society Working Paper No 64, 6 <https://www.compas.ox.ac.uk/media/WP2008-064-Anderson_Illegal_Immigrant_Victim_Villain.pdf> accessed 22 February 2016. 8 Detention Action, ‘The State of Detention: Immigration detention in the UK in 2014’ (Detention Action 2014) 3. 9 Georg Menz, ‘The Neoliberalized State and Migration Control: The Rise of Private Actors in the Enforcement and Design of Migration Policy’ (2009) 17 Journal of Contemporary Central and Eastern Europe 315, 322. 10 Stephanie J Silverman, ‘Briefing: Immigration Detention in the UK’ (The Migration Observatory at the University of Oxford Centre on Migration, Policy and Society 6 February 2015) 3. 11 Home Office, ‘Detention Services Order 01/2013: Paid Work’ (UK Border Agency, 26 March 2013) 1. 12 See eg Mary Bosworth, Inside Immigration Detention (OUP 2014). 13 But see Jon Burnett and Fidelis Chebe, ‘Captive labour: asylum seekers, migrants and employment in UK immigration removal centres’ (2010) 51 Race & Class 95, 96. 14 ILO, ‘United Kingdom joins renewed fight to end forced labour’ (ILO News, 22 January 2016) <www.ilo.org/global/standards/WCMS_445132/lang--ja/index.htm> accessed 14 March 2017. 15 ILO Protocol P029 – Protocol of 2014 to the Forced Labour Convention, 1930, art 2(f).

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96 2. THE ILO FRAMEWORK ON FORCED LABOUR

Under the 1930 ILO Convention, the UK is under a duty to “suppress the use of forced or compulsory labour in all its forms within the shortest possible period”.16 In fairness to the UK, the Modern Slavery Act 2015 consolidated existing slavery offences and represented a forceful ‘criminal law’ approach to forced labour by increasing the maximum penalty for this crime to life imprisonment.17 However, this ‘deterrence model’ for eliminating behaviour has proved relatively unsuccessful and there are still an estimated 10,000-13,000 victims of forced labour in the UK.18 Noting the limitations of the penal approach 87-year old Convention, the 2014 ILO Protocol seeks to address these “gaps in implementation”19 by creating obligations concerning victim protection,20 remedies,21 and prevention.22 This article focuses on the forward-looking new prevention duty contained in Article 2(f) of the Protocol that requires States to address “the root causes and factors that heighten the risks of forced or compulsory labour”.23 This means the prosecution of offenders alone is no longer sufficient, States must also take steps to prevent exploitative conditions deteriorating into situations of forced labour. The pre-emptive approach endorsed by the ILO is highly relevant in the context of migrant workers, a group the Protocol singles out as having “a higher risk of becoming victims of forced or compulsory labour”24 because it provides a key tool for criticising the role the Government plays in constructing the vulnerability of migrants in detention centres. Moreover, the provision represents a departure from an unhelpful binary approach to forced labour, instead understanding the concept as a continuum under which exploitative labour can regress and gradually turn into forced labour.25 Ratifying the Protocol in January 2016, the UK has made a formal commitment to adopt this preventive stance and had until 22 January 2017 to comply with its obligations.26 In the following sections, it is suggested there are five distinct factors that indicate IRC detainees are at a risk of becoming victims of forced labour. 3. FACTORS INCREASING THE RISK OF FORCED LABOUR A. Privatisation of Detention Centres The privatisation of detention management has significantly increased the risk of detainees becoming victims of forced labour. Under the existing legal framework, detainees held in IRCs are able to participate in “paid activities”27 and their remuneration is limited to either £1.00 or £1.25 per hour, as prescribed by Home !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16

ILO C029 (n 5), art 1(1). Modern Slavery Act 2015, ss 1-5. 18 Home Office, ‘Modern Slavery Strategy’ (November 2015) 9. 19 ILO P029 (n 15), preamble. 20 ibid, art 3. 21 ibid, art 4. 22 ibid, art 2. 23 ibid, art 2(f). 24 ibid, preamble. 25 Klara Skrivankova, ‘Between decent work and forced labour: examining the continuum of exploitation’ (Joseph Rowntree Foundation 2010) 4. 26 ILO P029 (n 15), art 8(2). 27 Detention Centre Rules 2001, SI 2001/238, rule 17. 17

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Office rules.28 Her Majesty’s Chief Inspectorate of Prisons (hereinafter ‘HMCIP’) has asserted that the detainees’ work largely relates to the day-to-day running of the detention centres in the form of cooking and cleaning.29 Although in theory on a voluntary basis, the scheme creates a very obvious risk for abuse because of the inevitable tension between profit and detainees’ rights. It is therefore highly significant that seven out of the UK’s ten IRCs are run by private profit making companies,30 who are able to pay detainees nominal fees instead of the national minimum wage of £7.50 per hour.31 Indeed, in 2014 a Freedom of Information Act request revealed that in just one month private companies were able to save £250,000 by using detainees to perform jobs that were essential to the running of IRCs.32 The potential to profit and make vast savings from detainee labour creates an unacceptable conflict of interest and heightens the risk of detainees becoming victims of forced labour. There is clear evidence of this conflict in Colnbrook IRC, which is run by the private company Mitie Care and Custody. Owning 3,690 shares in Mitie, the IRC’s centre manager Paul Morrison stands to make a substantial profit through the detainees’ cheap labour.33 As Schicor has observed in the context of prisons, “it is very likely that when privatisation takes place, profit making will climb to the top of the goal hierarchy, because if a satisfactory level of profit does not materialize for an extended period of time, the corporation will not be able to continue operating the facility.”34 The toxic combination of nominal wages and privatised detention management creates a clear financial incentive to exploit detainees. The ILO have noted that a key element of prevention is tackling demand, and the Government’s decision to privatise detention management appears to be wholly inconsistent with its prevention duty under the Protocol.35 Defending the regime, the Government have argued that there is no risk of forced labour inside IRCs because the work performed is “not intended to substitute the work of trained staff.”36 However, there is compelling evidence to suggest that the private companies are in fact reliant upon detainee labour. Routinely using detainees to perform the majority of the IRCs’ essential jobs, the NGO Corporate Watch has asserted that the centres would “grind to a halt without the essential work done by detainees.”37 This risk of over-reliance on detainee labour is exacerbated further by !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 28

Home Office (n 11). HM Chief Inspector of Prisons, ‘Report on an unannounced inspection of Heathrow Immigration Removal Centre Harmondsworth site’ (Her Majesty’s Inspectorate of Prisons 2016) para 3.14. 30 Silverman (n 10) 3. 31 Home Office, ‘National Minimum Wage and National Living Wage rates’ (2017) <www.gov.uk/national-minimum-wage-rates> accessed 7 March 2017. 32 Corporate Watch, ‘True scale of captive migrant labour revealed’ (Corporate Watch, 28 October 2014) <https://corporatewatch.org/news/2014/aug/22/scale-captive-migrant-labour-revealed> accessed 19 November 2015. 33 Companies House, ‘Mitie Care and Custody Limited: Annual Return’ (13 August 2015) 7 <https://beta.companieshouse.gov.uk/company/06976230/filinghistory/MzEyODk1ODc1M2FkaXF6a2N4/document?format=pdf&download=0> accessed 27 February 2016. 34 David Shichor, ‘Privatizing Correctional Institutions: An Organizational Perspective’ (1999) 79 The Prison Journal 226, 230. 35 International Labour Office, ‘Human Trafficking and Forced Labour Exploitation: Guidelines for Legislation and Law Enforcement’ (ILO 2005) 14. 36 Corporate Watch (n 32). 37 Kevin Rawlinson, ‘Private firms ‘are using detained immigrants as cheap labour’’ The Guardian (London, 22 August 2014) <www.theguardian.com/uk-news/2014/aug/22/immigrants-cheap-labourdetention-centres-g4s-serco> accessed 29 November 2014. 29

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the Government’s decision to drive down contracts with the private companies,38 which has left IRCs with “insufficient” staffing levels, according to the HMCIP.39 The potential for abuse is evident in the case of GEO Group, a private company that is estimated to have saved £1.5 million through the use of detainee labour in the UK.40 It has been argued that detainee labour is “an integral tool in maintaining GEO’s profitability”41 and in 2015, the company faced legal proceedings in the United States for allegedly forcing detainees to work in an IRC.42 The Government’s decision to include private actors in detention centre management therefore creates a financial incentive for companies to exploit the cheap labour of detainees, heightening the risk that they will become victims of forced labour. B. Sub-standard Working Conditions The second factor that heightens the risk of forced labour in IRCs is sub-standard working conditions, which can often deteriorate into situations of forced labour. The notion of forced labour can be extremely complex and, as Bridget Anderson has argued, “the precise point” on which sub-standard and tolerable labour becomes forced labour can be difficult to identify.43 Recognising this complexity, the ILO have increasingly viewed labour practices as a “continuum of experience”,44 whereby forced labour is the antithesis of decent work.45 This ‘labour law approach’ reframes the issue of forced labour away from criminal justice, viewing universal labour rights as playing a key role in the prevention of forced labour.46 The ILO’s emphasis on labour law legislation is clearly set out in the Protocol. Under Article 2(c)(i) States are required to extend the coverage of “labour law as appropriate…to all workers and all sectors of the economy.”47 In its reference to ‘all workers’, the Protocol would appear to intentionally include migrant workers within its scope. Indeed, the accompanying supplementary Recommendation (No.203) explains that States are under a duty to create “coherent” employment and migration policies, “which take into account the risks faced by specific groups of migrants, including those in an irregular situation.”48 This is highly significant in the context of IRCs as all detainees have an ‘irregular’ legal status. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 38

Gill Plimmer, ‘Mitie slips to loss as it outlines pressures on government deals’ The Financial Times (London, 17 November 2014) <www.ft.com/cms/s/0/ad01e2a4-6e43-11e4-afe500144feabdc0.html#axzz434He5G9S> accessed 22 February 2016. 39 HM Chief Inspector of Prisons, ‘Report on an unannounced inspection of Yarl’s Wood Immigration Removal Centre’ (Her Majesty’s Inspectorate of Prisons 2015) 5. 40 Corporate Watch (n 32). 41 Alan Prendergast, ‘GEO lawsuit alleging forced labor of immigrant detainees moves forward’ (Westword, 8 July 2015) <www.bkjvisalaw.com/660/> accessed 14 March 2017. 42 ibid. 43 Bridget Anderson and Julia O’Connell Davidson, ‘Is Trafficking in Human Beings Demand Driven? A Multi-Country Pilot Study’ (International Organization for Migration 2003) 9. 44 Bridget Anderson and Rutvica Andrijasevic, ‘Sex, Slaves and Citizens: The Politics of AntiTrafficking’ (2008) 40 Soundings 135, 141. 45 International Labour Office, ‘A global alliance against forced labour: Global report under the followup to the ILO Declaration on Fundamental Principles and Rights at Work’ (ILO 2005) 8. 46 Cathryn Costello, ‘Migrants and Forced Labour: A Labour Law Response’ in Alan Bogg, Cathryn Costello, ACL Davies and Jeremias Prassl (eds), The Autonomy of Labour Law (Hart Publishing 2015) 220. 47 ILO P029 (n 15), art 2(c)(i). 48 ILO Recommendation R203 - Forced Labour (Supplementary Measures), art 4(h).

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Despite this clear obligation concerning migrant workers’ rights, the Government has denied detainees access to basic labour law rights. Under UK law, individuals without leave to enter the UK are denied the right to work and therefore fall outside the scope of ordinary labour law protection.49 Instead, detainees are subject to a specific work regime contained in the Detention Centre Rules whereby they may participate in paid activities for the “relief of boredom”.50 Additionally, as already mentioned, it is intentional Home Office policy that limits detainees’ remuneration to either £1.00 or £1.25 an hour.51 The Immigration and Asylum Act 1999 explicitly states that “a detained person does not qualify for national minimum wage in respect of work which he does in pursuance of removal centre rules”.52 Far from extending labour law legislation to ‘all workers’, the Government is deliberately ensuring detainees are paid nominal wages on the basis of their ‘irregular’ immigration status. The Government therefore appears to be complicit in structuring a working environment in which detainees are refused statutory employment protection and are consequently exposed to exploitative working practices. C. Threats of Violence “This man can do anything to me. It’s not right at all. It makes you so vulnerable.”53 A third factor that heightens the risks of forced labour in IRCs is the arbitrary and excessive force used by guards. The ILO have repeatedly stressed that the threat of violence is a key indicator of forced labour because it provides employers with a powerful tool of coercion, which they can use to impose work.54 Therefore, the “widespread and seemingly systemic abuse”55 inside IRCs creates a serious risk that detainees will become victims of forced labour. Documenting this violence, the charity Medical Justice have detailed 300 instances of alleged assaults where detainees claim to have been: kicked, punched, stamped on, and subjected to “testicular restraint.”56 Reports of excessive violence at Yarl’s Wood IRC begun almost immediately after its opening in 2001,57 and in 2015, 76% of detainees at the centre are reported to have felt bullied by a member of staff.58 The lethal potential of the guards’ threats was realised in 2010 when three guards working for the company G4S killed a detainee using excessive restraint techniques.59 Moreover, in 2014 a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 49

Immigration, Asylum and Nationality Act 2006 (IAA), s 15. Detention Centre Rules 2001 (n 27). 51 Home Office (n 11). 52 Immigration, Asylum and Nationality Act 2006, s 59; see also Corporate Watch, ‘Are £1 an hour jobs legal’ (Corporate Watch, 22 April 2015) <https://corporatewatch.org/news/2015/apr/22/are%C2%A31-hour-jobs-legal> accessed 18 November 2015. 53 Women for Refugee Women, ‘I am Human: Refugee Women’s Experiences of Detention’ (Women for Refugee Women 2015) 11-12. 54 International Labour Office, ‘ILO Indicators of Forced Labour’ (ILO 2012) 13. 55 Medical Justice, ‘Outsourcing Abuse: The use and misuse of state-sanctioned force during the detention and removal of asylum seekers’ (Birnberg Peirce & Partners, Medical Justice and the National Coalition of Anti-Deportation Campaigns 2008) 2. 56 ibid 23-42. 57 Danny Shaw, ‘Yarl’s Wood: Years of misery and controversy’ BBC News (10 June 2015) <www.bbc.co.uk/news/uk-33043395> accessed 25 February 2016. 58 Women for Refugee Women (n 53) 3. 59 Huffington Post UK, ‘Jimmy Mubenga Dead: Angolan Man Died After G4S Security Guards Restrain Immigrant On Plane Home’ The Huffington Post (14 May 2014) <www.huffingtonpost.co.uk/2013/05/14/jimmy-mubenga_n_3271511.html> accessed 1 March 2016. 50

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detainee died after being attacked by ten G4S officers in a riot in an Australian IRC, while another G4S guard nearly killed a detainee by slitting his throat from behind.60 These instances of staff brutality serve to create a climate of fear in IRCs and there is clear risk that, given the private companies’ desire for cheap labour, detainees could be threatened with physical harm and forced to work. The Government has further aggravated the exploitative IRC conditions by failing to introduce a fair and transparent complaints procedure. A robustly effective complaints mechanism would significantly reduce the risk of detainees becoming victims of forced labour as it would provide a means to voice their fear against the guards’ threats. However, the Home Office has unequivocally failed to provide this and almost half of all detainees who complain are dissatisfied with how it was managed.61 For example, in Yarl’s Wood IRC, where there was an 80% increase in complaints concerning staff conduct in 2015,62 detainees were told to wait “4-5 months” for a response to their complaint.63 Further, the 2016 Shaw Review highlighted that the previous Complaints Audit Committee was abolished after it was found that 83% of investigations were inadequate.64 This has led to the unacceptable existing situation in which there is no external organisation overseeing the complaints process.65 The failure to provide a fair complaints procedure denies detainees a vital lifeline against the abuse of guards and therefore serves to worsen the exploitative environment in IRCs. D. Threats Concerning Deportation A fourth factor heightening the risk of forced labour in IRCs is the psychological coercion imposed by guards. The ILO has emphasised that psychological coercion, in the form of threats of deportation and denunciation to the authorities, are key indicators of forced labour because they exploit the “deportability”66 of migrant workers.67 Examining this fear, Hannah Lewis and Louise Waite argue that having an insecure immigration status contributes to the “hyper-precarity” experienced by migrant workers, as the constant threat of deportation is used to coerce them into working.68 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 60

Jonathan Pearlman, ‘Migrant killed after attack by G4S guards, inquiry finds’ The Telegraph (London, 26 May 2014) <www.telegraph.co.uk/news/worldnews/australiaandthepacific/australia/10856255/Migrant-killedafter-attack-by-G4S-guards-inquiry-finds.html> accessed 1 March 2016. 61 Mary Bosworth and Blerina Kellezi, ‘Quality of Life in Detention: Results from MQLD Questionnaire Data Collected in IRC Campsfield House, IRC Yarl's Wood, IRC Colnbrook, and IRC Dover, September 2013-August 2014’ (Oxford: Centre for Criminology, January 2015) 23 <http://ssrn.com/abstract=2569667> accessed 19 February 2016. 62 HM Chief Inspector of Prisons, Yarl’s Wood (n 39) 18. 63 Women for Refugee Women (n 53) 22. 64 Medical Justice, ‘Biased and Unjust: The Immigration Detention Complaints Process’ (Medical Justice 2014) 4. 65 Stephen Shaw, ‘Review into the Welfare in Detention of Vulnerable Persons: A report to the Home Office’ (Home Office 2016) 155. 66 Nicholas De Genova, ‘Migrant “Illegality” and Deportability in Everyday Life’ (2002) 31 Annual Review of Anthropology 419, 420. 67 ILO, ‘Details of indicators for labour exploitation’ (ILO 2013) 2 <www.ilo.org/wcmsp5/groups/public/---ed_norm/--declaration/documents/publication/wcms_105035.pdf> accessed 1 February 2016. 68 Hannah Lewis and Louise Waite, ‘Asylum, Immigration Restrictions and Exploitation: Hyperprecarity As a Lens for Understanding and Tackling Forced Labour’ (2015) 5 Anti-Trafficking Review 1, 2.

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In the context of IRCs, deportation threats are likely to be a particularly effective tool of coercion because many detainees are asylum seekers fleeing persecution or serious harm and are consequently terrified of returning home.69 The fear of returning home makes detainees extremely vulnerable to coercion and a report by Women for Refugee Women in 2015 highlighted that detainees fear arbitrary deportation and reports of guards telling detainees to return to their native country.70 There is therefore a risk that deportation threats could be used to force detainees to work. Indeed, although such threats by guards may not have the power to influence a detainees’ removal, the ILO insists, “the credibility of the threats must be evaluated from the workers’ perspective”.71 Therefore, whether credible or not, the guards’ threats alone could be sufficient to create situations of forced labour in IRCs. The Government have intensified this vulnerability by failing to provide detainees with adequate legal representation. A key safeguard to prevent the guards’ psychological coercion is access to lawyers so detainees do not feel their application is at the mercy of IRC guards. Although the Government provides some legal assistance through the Legal Aid Agency, following the cuts introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (hereinafter ‘LASPO’), this protection is insufficient to address the vulnerability of all detainees. According to Bail for Immigration Detainees, the number of detainees with legal representation after LASPO dropped from 79% in November 2012 to 43% in May 2013.72 Creating considerable obstacles to justice, the report found that 13% of detainees had waited three weeks for an appointment with a legal adviser as surgeries are unable to meet demand.73 Fees for private representation can be up to £4,50074 and an alarming 30% of detainees are forced to represent themselves.75 Struggling to navigate the complex legal processes and constantly changing immigration law, self-represented detainees are left with a “sense of powerlessness”76 and far more likely to believe threats concerning their deportation. By introducing LASPO, the Government has left detainees in an acutely vulnerable position whereby they are far more likely to be subjected to the psychological coercion of IRC guards.

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Medical Justice (n 55) 60. ibid 14. 71 ILO (n 54) 15. 72 Bail for Immigration Detainees, ‘Bail for Immigration Detainee’s submission to the APPG on Refugees and APPG on Migration’s parliamentary inquiry into the use of immigration detention in the UK’ (2014) 5. 73 ibid 7. 74 Gatwick Detainees Welfare Group, ‘Cutting Justice: The impacts of the legal aid cuts for people detained in Brook House and Tinsley House IRCs’ (2015) 15. 75 ibid 21. 76 ibid 32. 70

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E. Mental Health Concerns A final way in which the Government has increased the risk of forced labour in IRCs is its complicity in the routine detention of individuals with mental health concerns. The ILO have indicated that “abuse of vulnerability” is an indicator of forced labour because vulnerability induces an intensified receptiveness to pressure and coercion.77 In support of this argument, the Immigration Law Practitioners' Association have argued that the use of force will have “disproportionate effects” on individuals with mental health concerns.78 This enhanced vulnerability means that detainees with such concerns have a heightened risk of becoming victims of forced labour because they are likely to be more affected by the guards’ threats of violence and deportation. Indeed, the UK Government itself has recognised that mental health problems exacerbate an individual’s susceptibility to forced labour because individuals become “easier to coerce into a situation where they can be manipulated.”79 Rule 35 of the Detention Centre Rules exists as a safeguard for particularly vulnerable detainees, providing for a process by which their detention can be reviewed if their “health is likely to be injuriously affected by continued detention.”80 However, as is evident from the above discussion, there are significant gaps between the stated policy and what happens in practice and there is evidence to suggest that the Home Office routinely detains individuals with mental health conditions. The IRC population consists of a highly vulnerable group of people, 77% of which are suffering from some kind of mental health condition.81 IRCs have been consistently critiqued for their poor quality mental healthcare,82 and so individuals with serious mental health concerns receive inadequate treatment.83 Furthermore, Rule 35 has proven to be an ineffective safeguard where just 9% of reports have led to release.84 The failure of the Home Office has been emphasised by the HMCIP who found that Rule 35 reports were often ignored or not properly replied to,85 highlighting instances where “the reports were compelling but detention had been maintained.”86 The Home Office has also been subject to significant judicial criticism for failing to follow its own policy. For instance, in five recent cases the High Court held that the continued detention of detainees with serious mental health conditions constituted inhuman and degrading treatment.87 In breach of its Article 3 European !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 77

ILO (n 54) 5. Shaw (n 65) 146. 79 Home Office, ‘Victims of modern slavery – frontline staff guidance’ (2016) 44. 80 Detention Centre Rules 2001 (n 27), rule 35(1); See also Home Office, ‘Detention Service Order 17/2012: Application of Detention Centre Rule’ (2012), paras 15, 34. 81 Detention Forum’s Vulnerable People Working Group, ‘Rethinking ‘Vulnerability’ in Detention: a Crisis of Harm’ (Detention Forum 2015) 14. 82 See Hugh Grant-Peterkin, Theresa Schleicher, Mina Fazel, Sarah Majid, Katy Robjant, Cornelius Katona ‘Inadequate mental healthcare in immigration removal centres’ (2014) 349 British Medical Journal 1756-1833; Ali McGinley and Adeline Trude, ‘Positive duty of care? The mental health crisis in immigration detention’ (Mental Health in Immigration Detention Project 2012). 83 Shaw (n 65) 178-182. 84 Home Office, ‘Detention Centre Rule 35 audit’ (UK Border Agency, 4 February 2011) 9. 85 HM Chief Inspector of Prisons, ‘HM Chief Inspector of Prisons for England and Wales Annual Report 2010–11 for England and Wales’ (HM Inspectorate of Prisons 2011) 68. 86 HM Chief Inspector of Prisons, ‘Report on an unannounced inspection of Dungavel House Immigration Removal Centre’ (Her Majesty’s Inspectorate of Prisons 2015) 29. 87 R (S) v Secretary of State for the Home Department [2011] EWHC 2120; R (BA) v Secretary of State for the Home Department [2011] EWHC 2748; R (D) v Secretary of State for the Home Department 78

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Convention on Human Rights obligation to prevent inhuman or degrading treatment,88 Deputy Judge Laing QC in R (BA) v Secretary of State for the Home Department89 criticised the Home Office’s “deplorable failure” and “callous indifference to BA’s plight.”90 By failing to follow its own policy and routinely detaining individuals with serious mental health concerns, the Government is heightening the risk that vulnerable detainees could be exploited by the violent and psychological coercion dispensed by IRC guards. Finally, by allowing the indefinite detention of detainees, the Government is further increasing the chances that individuals will develop mental health conditions in IRCs. While Ireland has a fixed time limit of 21 days, the UK is one of the few countries in Europe that allows individuals to remain in detention indefinitely.91 This is problematic because empirical evidence produced by Katy Robjant et al suggests an individual’s mental health deteriorates in cases of lengthy stays in detention.92 The risk of guards manipulating this to impose work is demonstrated in covert video footage from detainees showing that long-stay migrants are the typical targets of guards who “convince” them to work.93 Although in theory Home Office policy states that detention “must be used sparingly, and for the shortest period necessary”,94 it appears this is consistently ignored and detainees have been held captive for extremely long periods of time.95 For example, the Home Office have conceded that 38% of victims are detained for more than 29 days,96 and Mary Bosworth’s study suggests that the average stay in Colnbrook IRC is 114 days.97 Furthermore, the High Court in R (Sino) v Secretary of State for the Home Department98 held that a detainee’s 4 year and 11 month stay was unlawful on grounds of length.99 The key failure of the Government in this regard is its refusal to implement a maximum time limit on detention. By ignoring the repeated calls to introduce a 28-day limit,100 the Government has exacerbated the risk that detainees will develop a mental health condition inside IRCs and become more susceptible to exploitation under the guards’ threats.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! [2012] EWHC 2501; R (HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979; R (S) v Secretary of State for the Home Department [2014] EWHC 50. 88 European Convention on Human Rights, art 3. 89 R (BA) v Secretary of State for the Home Department (n 87). 90 ibid [236]-[238] (Laing J). 91 All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration, ‘The Report of the Inquiry into the Use of Immigration Detention in the United Kingdom’ (2015) 16. 92 Katy Robjant, Rita Hassan and Cornelius Katona, ‘Mental health implications of detaining asylum seekers: systematic review’ (2009) 194 The British Journal of Psychiatry 306, 309. 93 Corporate Watch, ‘Working Illegally’ (Standoff Films, 2015) <https://vimeo.com/126678906> accessed 13 January 2016. 94 UK Visas and Immigration Enforcement Instructions and Guidance, s 55 ch 1.3. <www.gov.uk/government/uploads/system/uploads/attachment_data/file/470593/2015-1023_Ch55_v19.pdf> accessed 27 February 2016 (withdrawn 7 March 2017). 95 HMCIP, Yarl’s Wood (n 39) 21. 96 Home Office, ‘National Statistics: Detention’ (26 November 2015) <www.gov.uk/government/publications/immigration-statistics-july-to-september-2015/detention> accessed 22 February 2016. 97 Bosworth and Kellezi (n 61) 17. 98 R (Sino) v Secretary of State for the Home Department 2011 EWHC 2249. 99 See also R(Mhlanga) v Secretary of State for the Home Department 2012 EWHC 1587. 100 All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration (n 91) 9.

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In this article, I have argued that the Government is complicit in creating a highly exploitable working environment in IRCs. First, the UK’s ILO obligations were examined and the onerous ‘prevention’ provision that requires States to tackle forced labour at its root was highlighted. In the proceeding sections, five factors that intensify detainees’ vulnerability in IRCs were assessed: the privatisation of detention management, the poor working conditions detainees endure, the IRC guards’ threats concerning violence, and deportation, and detainees’ mental health conditions. In failing to address these concerns, I have suggested that the UK Government has failed to comply with its duties under the ILO Protocol, which requires States to “address root causes and not just symptoms” of forced labour.101 Although claiming to be a world leader in the fight against modern slavery,102 there appears to be a yawning gap between the UK Government’s rhetoric and reality. Prevention strategies are conspicuously absent from existing legislation, which focus heavily on the criminal law as the primary method of eliminating forced labour. Rather, the UK’s ratification of the Protocol might be better understood as motivated by ‘sociological institutionalism’; a desire to conform to a normative “policy script” that purports to oppose slavery but without the underlying desire to enact significant change.103

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International Labour Office, ‘Matters arising out of the work of the 103rd Session of the International Labour Conference Follow-up to the adoption of the Protocol and Recommendation on supplementary measures for the effective suppression of forced labour’ (ILO 19 September 2014) 3. 102 Home Office, ‘Modern slavery: how the UK is leading the fight’ (2015) 1. 103 Leonardo Baccini and Mathias Koenig-Archibugi, ‘Why Do States Commit to International Labor Standards? The Importance of ‘Rivalry’ and ‘Friendship’’ (2012) London School of Economics Working Paper, 12 <http://ssrn.com/abstract=2135054> accessed 11 February 2016.

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105 BIBLIOGRAPHY

Primary Sources Cases R (BA) v Secretary of State for the Home Department [2011] EWHC 2748. R (D) v Secretary of State for the Home Department [2012] EWHC 2501. R (HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979. R(Mhlanga) v Secretary of State for the Home Department 2012 EWHC 1587. R (S) v Secretary of State for the Home Department [2011] EWHC 2120. R (S) v Secretary of State for the Home Department [2014] EWHC 50. R (Sino) v Secretary of State for the Home Department 2011 EWHC 2249. Legislation and Secondary Legislation Detention Centre Rules 2001, SI 2001/238. Immigration, Asylum and Nationality Act 2006. Modern Slavery Act 2015 Secondary Sources Academic Articles and Working Papers Anderson B, ‘Illegal immigrant: Victim or Villain?’ (2008) University of Oxford Centre on Migration, Policy and Society Working Paper No 64 <https://www.compas.ox.ac.uk/media/WP-2008-064Anderson_Illegal_Immigrant_Victim_Villain.pdf> accessed 22 February 2016. Anderson B and Andrijasevic R, ‘Sex, Slaves and Citizens: The Politics of AntiTrafficking’ (2008) 40 Soundings 135. Baccini L and Koenig-Archibugi M, ‘Why Do States Commit to International Labor Standards? The Importance of ‘Rivalry’ and ‘Friendship’’ (2012) London School of Economics Working Paper, 12 <http://ssrn.com/abstract=2135054> accessed 11 February 2016. Burnett J and Chebe F, ‘Captive labour: asylum seekers, migrants and employment in UK immigration removal centres’ (2010) 51 Race & Class 95. De Genova N, ‘Migrant “Illegality” and Deportability in Everyday Life’ (2002) 31 Annual Review of Anthropology 419.

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Grant-Peterkin H, Schleicher T, Fazel M, Majid S, Robjant K, Katona C ‘Inadequate mental healthcare in immigration removal centres’ (2014) 349 British Medical Journal 1756. Lewis H and Waite L, ‘Asylum, Immigration Restrictions and Exploitation: Hyperprecarity As a Lens for Understanding and Tackling Forced Labour’ (2015) 5 Anti-Trafficking Review 1. Menz G, ‘The Neoliberalized State and Migration Control: The Rise of Private Actors in the Enforcement and Design of Migration Policy’ (2009) 17 Journal of Contemporary Central and Eastern Europe 315. Robjant K, Hassan R and Katona C, ‘Mental health implications of detaining asylum seekers: systematic review’ (2009) 194 The British Journal of Psychiatry 306. Shichor D, ‘Privatizing Correctional Institutions: An Organizational Perspective’ (1999) 79 The Prison Journal 226. Books and Book Chapters Bosworth M, Inside Immigration Detention (OUP 2014). Costello C, ‘Migrants and Forced Labour: A Labour Law Response’ in Alan Bogg, Cathryn Costello, ACL Davies and Jeremias Prassl (eds), The Autonomy of Labour Law (Hart Publishing 2015). Government reports and documents All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration, ‘The Report of the Inquiry into the Use of Immigration Detention in the United Kingdom’ (2015). Companies House, ‘Mitie Care and Custody Limited: Annual Return’ (13 August 2015) 7 <https://beta.companieshouse.gov.uk/company/06976230/filinghistory/MzEyODk1ODc1M2FkaXF6a2N4/document?format=pdf&download=0> accessed 27 February 2016. HM Chief Inspector of Preisons, ‘HM Chief Inspector of Prisons for England and Wales Annual Report 2010–11 for England and Wales’ (HM Inspectorate of Prisons 2011). HM Chief Inspector of Prisons, ‘Report on an unannounced inspection of Dungavel House Immigration Removal Centre’ (HM Inspectorate of Prisons 2015). HM Chief Inspector of Prisons, ‘Report on an unannounced inspection of Heathrow Immigration Removal Centre Harmondsworth site’ (Her Majesty’s Inspectorate of Prisons 2016).

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HM Chief Inspector of Prisons, ‘Report on an unannounced inspection of Yarl’s Wood Immigration Removal Centre’ (Her Majesty’s Inspectorate of Prisons 2015). Home Office, ‘Detention Centre Rule 35 audit’ (UK Border Agency, 4 February 2011). Home Office, ‘Detention Services Order 01/2013: Paid Work’ (UK Border Agency, 26 March 2013). Home Office, ‘Detention Service Order 17/2012: Application of Detention Centre Rule’ (2012). Home Office, ‘Modern slavery: how the UK is leading the fight’ (2015). Home Office, ‘Modern Slavery Strategy’ (November 2015). Home Office, ‘National Statistics: Detention’ (26 November 2015) <www.gov.uk/government/publications/immigration-statistics-july-to-september2015/detention> accessed 22 February 2016. Home Office, ‘Victims of modern slavery – frontline staff guidance’ (2016). Shaw S, ‘Review into the Welfare in Detention of Vulnerable Persons: A report to the Home Office’ (Home Office 2016). UK Visas and Immigration Enforcement Instructions and Guidance, s 55 ch 1.3. <www.gov.uk/government/uploads/system/uploads/attachment_data/file/470593/201 5-10-23_Ch55_v19.pdf> accessed 27 February 2016 (withdrawn 7 March 2017). International Treaties and Codes European Convention on Human Rights. ILO Convention C029 – Forced Labour Convention, 1930 (No 29). ILO Protocol P029 – Protocol of 2014 to the Forced Labour Convention, 1930. ILO Recommendation R203 - Forced Labour (Supplementary Measures). Research Papers and Reports Anderson B and O’Connell Davidson J, ‘Is Trafficking in Human Beings Demand Driven? A Multi-Country Pilot Study’ (International Organization for Migration 2003). Bail for Immigration Detainees, ‘Bail for Immigration Detainee’s submission to the APPG on Refugees and APPG on Migration’s parliamentary inquiry into the use of immigration detention in the UK’ (2014).

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Bosworth M and Kellezi B, ‘Quality of Life in Detention: Results from MQLD Questionnaire Data Collected in IRC Campsfield House, IRC Yarl's Wood, IRC Colnbrook, and IRC Dover, September 2013-August 2014’ (Oxford: Centre for Criminology, January 2015) <http://ssrn.com/abstract=2569667> accessed 19 February 2016. Detention Action, ‘The State of Detention: Immigration detention in the UK in 2014’ (Detention Action 2014). Detention Forum’s Vulnerable People Working Group, ‘Rethinking ‘Vulnerability’ in Detention: a Crisis of Harm’ (Detention Forum 2015). Gatwick Detainees Welfare Group, ‘Cutting Justice: The impacts of the legal aid cuts for people detained in Brook House and Tinsley House IRCs’ (2015). International Labour Office, ‘A global alliance against forced labour: Global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work’ (ILO 2005). International Labour Office, ‘Human Trafficking and Forced Labour Exploitation: Guidelines for Legislation and Law Enforcement’ (ILO 2005). International Labour Office, ‘ILO Indicators of Forced Labour’ (ILO 2012). International Labour Office, ‘Matters arising out of the work of the 103rd Session of the International Labour Conference Follow-up to the adoption of the Protocol and Recommendation on supplementary measures for the effective suppression of forced labour’ (ILO 19 September 2014). International Labour Office, ‘Profits and Poverty: The Economics of Forced Labour’ (ILO 2014) 13. International Labour Office, ‘Report IV(1): Strengthening action to end forced labour’ (103rd International Labour Conference Session, Geneva, ILO 2014). McGinley A and Trude A, ‘Positive duty of care? The mental health crisis in immigration detention’ (Mental Health in Immigration Detention Project 2012). Medical Justice, ‘Biased and Unjust: The Immigration Detention Complaints Process’ (Medical Justice 2014). Medical Justice, ‘Outsourcing Abuse: The use and misuse of state-sanctioned force during the detention and removal of asylum seekers’ (Birnberg Peirce & Partners, Medical Justice and the National Coalition of Anti-Deportation Campaigns 2008). Skrivankova K, ‘Between decent work and forced labour: examining the continuum of exploitation’ (Joseph Rowntree Foundation 2010).

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Silverman S, ‘Briefing: Immigration Detention in the UK’ (The Migration Observatory at the University of Oxford Centre on Migration, Policy and Society 6 February 2015). Women for Refugee Women, ‘I am Human: Refugee Women’s Experiences of Detention’ (Women for Refugee Women 2015). Online Sources Bradley K, ‘Karen Signs ILO Protocol On Forced Labour’ (Karen Bradley MP, 25 January 2016) <www.karenbradley.co.uk/news/karen-signs-ilo-protocol-forcedlabour> accessed 23 February 2016. Corporate Watch, ‘Are £1 an hour jobs legal’ (Corporate Watch, 22 April 2015) <https://corporatewatch.org/news/2015/apr/22/are-%C2%A31-hour-jobs-legal> accessed 18 November 2015. Corporate Watch, ‘True scale of captive migrant labour revealed’ (Corporate Watch, 28 October 2014) <https://corporatewatch.org/news/2014/aug/22/scale-captivemigrant-labour-revealed> accessed 19 November 2015. Corporate Watch, ‘Working Illegally’ (Standoff Films, 2015) <https://vimeo.com/126678906> accessed 13 January 2016. Diego-Rosell P and Larsen J, ‘35.8 Million Adults and Children in Slavery Worldwide’ (Gallup, 17 November 2014) <www.gallup.com/poll/179459/millionadults-children-slavery-worldwide.aspx> accessed 28 February 2016. Home Office, ‘National Minimum Wage and National Living Wage rates’ (2017) <www.gov.uk/national-minimum-wage-rates> accessed 7 March 2017. Huffington Post UK, ‘Jimmy Mubenga Dead: Angolan Man Died After G4S Security Guards Restrain Immigrant On Plane Home’ The Huffington Post (14 May 2014) <www.huffingtonpost.co.uk/2013/05/14/jimmy-mubenga_n_3271511.html> accessed 1 March 2016. ILO, ‘Details of indicators for labour exploitation’ (ILO 2013) 2 <www.ilo.org/wcmsp5/groups/public/---ed_norm/--declaration/documents/publication/wcms_105035.pdf> accessed 1 February 2016. ILO, ‘United Kingdom joins renewed fight to end forced labour’ (ILO News, 22 January 2016) <www.ilo.org/global/standards/WCMS_445132/lang--ja/index.htm> accessed 14 March 2017. Pearlman J, ‘Migrant killed after attack by G4S guards, inquiry finds’ The Telegraph (London, 26 May 2014) <www.telegraph.co.uk/news/worldnews/australiaandthepacific/australia/10856255/Mi grant-killed-after-attack-by-G4S-guards-inquiry-finds.html> accessed 1 March 2016.

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Plimmer G, ‘Mitie slips to loss as it outlines pressures on government deals’ The Financial Times (London, 17 November 2014) <www.ft.com/cms/s/0/ad01e2a46e43-11e4-afe5-00144feabdc0.html#axzz434He5G9S> accessed 22 February 2016. Potter E, ‘Forced Labor Plenary Statement’ (103rd International Labour Conference Session, Geneva, ILO 9 June 2014) 4 <https://www.uscib.org/docs/2014_06_09_ILO_Potter_Statement.pdf> 22 February 2016. Prendergast A, ‘GEO lawsuit alleging forced labor of immigrant detainees moves forward’ (Westword, 8 July 2015) <www.bkjvisalaw.com/660/> accessed 14 March 2017. Rawlinson K, ‘Private firms ‘are using detained immigrants as cheap labour’’ The Guardian (London, 22 August 2014) <www.theguardian.com/uknews/2014/aug/22/immigrants-cheap-labour-detention-centres-g4s-serco> accessed 29 November 2014. Shaw D, ‘Yarl’s Wood: Years of misery and controversy’ BBC News (10 June 2015) <www.bbc.co.uk/news/uk-33043395> accessed 25 February 2016.

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ARE WE ‘SLEEPWALKING INTO A SURVEILLANCE SOCIETY’?1 Lukia Nomikos This essay argues that we live in a surveillance society in which the interception of communications is so pervasive that it threatens to undermine the fundamental human rights that underpin democracy, and that this threat will only continue to grow in the future. The validity of these assertions is established through the thorough analysis of the Regulation of Investigatory Powers Act 2000 and the new Investigatory Powers Act 2016. Furthermore, it is contended that we are ‘sleepwalking’ when it comes to surveillance, and that this apathy stems mainly from the state’s convincing justifications for increasing its powers and from the public’s struggle to grasp the meaning and value of privacy. Keywords: surveillance, privacy, interception of communications, Regulation of Investigatory Powers Act 2000, Investigatory Powers Act 2016, technology, spying, Snoopers Charter 1. INTRODUCTION In 2004, Richard Thomas, the former Information Commissioner of the UK, famously warned that the country risks ‘sleepwalking into a surveillance society’.2 While he was mainly concerned with the government’s plans for identity cards and a population register,3 the focus here will be on surveillance in the shape of state interception of communications. This is when certain public authorities intercept any communication in the course of its transmission by means of a public postal service or telecommunication system.4 The first step in answering the question posed in the title is to consider whether we, in fact, already live in a surveillance society. This will be done through the critical analysis of the Regulation of Investigatory Powers Act 2000. The second step involves looking at the future of interception powers by examining the new Investigatory Powers Act 2016 in order to establish whether we are drifting towards a surveillance society or – if we already live in one – whether we are sinking deeper into it. The final step is to consider whether we have been and continue to ‘sleepwalk’. This will include a discussion of the possible reasons for sleepwalking as well as an assessment of the value of privacy. 2. REFLECTIONS ON RIPA 2000 In order to establish whether we are sleepwalking into a surveillance society, it is important to first critically consider the law that has so far regulated surveillance powers – not least because there have been suggestions that we already live in a surveillance society. In 2006, Richard Thomas claimed that “we are waking up to a surveillance society”5 while the Surveillance Studies Network boldly stated that it is “pointless to talk 1

Title inspired by Richard Thomas, the former Information Commissioner of the United Kingdom Richard Ford, ‘Beware rise of Big Brother state, warns data watchdog’ The Times (London, 16 August 2004) <http://www.thetimes.co.uk/tto/news/uk/article1927810.ece> accessed 11 March 2016. 3 ibid. 4 Regulation of Investigatory Powers Act 2000, s 1(1). 5 Jason Bennetto,‘Big Brother Britain 2006: “We are waking up to a surveillance society all around us”’ Independent (London, 2 November 2006) <http://www.independent.co.uk/news/uk/crime/big-brotherbritain-2006-we-are-waking-up-to-a-surveillance-society-all-around-us-5331152.html> accessed 11 March 2016. 2

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about a surveillance society in the future tense”.6 Ewing went as far as comparing “the world of Regulation of Investigatory Powers Act 2000”7 to Orwell’s famous dystopian novel Nineteen Eighty-Four8, which depicts a totalitarian regime reliant on surveillance. As the focus will be on the interception of communications, the analysis will revolve around Part I of the Regulation of Investigatory Powers Act 2000 (RIPA). A ‘surveillance society’ is generally defined as a society where surveillance technology is widely used to monitor people’s everyday activities; yet it also carries a negitave connotation that suggest it is something more. Therefore, in this essay, a surveillance society will be understood as a society where surveillance is so pervasive that it threatens our fundamental human rights and democracy. The main question then, is whether the law on the interception of communications, namely RIPA, has posed this threat. The mere fact that the European Court on Human Rights (ECtHR) held, in Kennedy v United Kingdom,9 that RIPA does not breach our right to privacy under Article 8 of the European Convention on Human Rights (ECHR) does not resolve the “social debate surrounding the question of whether RIPA 2000 is still too draconian”.10 This is because the focus of the application in this case was relatively narrow and thus it does not affirm the compatibility of all the provisions of RIPA with Article 8.11 The first issue to consider is the scope of the powers under RIPA. The interception of communication interferes with an individual’s right to privacy under Article 8 of the ECHR12 and, as the Human Rights Act 1998 incorporates the Convention into UK law, it is a criminal offence to intercept communications intentionally and without lawful authority.13 In most cases, the lawful interception of communications will require a warrant which can generally only be issued by the Secretary of State.14 The persons who may apply for a warrant are limited to the nine officials listed in s. 6(2) of the Act – this is worrying as it represents an extension of the powers under RIPA’s predecessor, the Interception of Communications Act 1985. Furthermore, warrants are issued with considerable ease; an outright refusal of an application for a warrant is rare.15 Reassurances that the Secretary of State does not act as a ‘rubber stamp’ merely because not all applications for warrants are granted16 are highly unconvincing. Interception warrants can only be issued if it is necessary and proportionate to its aim,17 including interests of national security, the prevention or detection of serious crime, safeguarding the economic well-being of the UK, or to give effect to an

Surveillance Studies Network, A Report on the Surveillance Society [online] (Surveillance Studies Network 2006) 1 <https://ico.org.uk/media/about-the-ico/documents/1042390/surveillance-society-fullreport-2006.pdf> accessed 11 March 2016. 7 Keith Ewing, Bonfire of the Liberties: New Labour, Human Rights, and the Rule of Law (OUP 2010) 53. 8 George Orwell, Nineteen Eighty-Four (Secker & Warburg 1949). 9 [2011] 52 EHRR 4. 10 Hiral Bhatt, ‘RIPA 2000: A Human Rights Examination’ (2006) 10 The International Journal of Human Rights 285, 311. 11 Andrew Ashworth, 'Human Rights: Secret Surveillance under Powers in the Regulation of Investigatory Powers Act 2000' [2010] Criminal Law Review 868, 869. 12 Rita Esen, ‘Intercepting Communications “in Accordance with the Law”’ (2012) 76 Journal of Criminal Law 164. 13 RIPA (n 3), s 1(2). 14 ibid s 5(1). 15 Interception of Communications Commissioner’s Office, ‘Annual Report of the Interception of Communications Commissioner for 2002’ (TSO 2003) 3 <http://www.ioccouk.info/docs/2002%20Annual%20Report.pdf accessed 11 March 2016. 16 ibid 3. 17 RIPA (n 3), s 5(2).

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international mutual assistance agreement.18 At first this may sound like a sufficiently limited number of grounds, but further consideration reveals that each ground could potentially be interpreted very broadly and thus s. 5(3) is “unlikely to present an obstacle to those agencies which seek to use [RIPA]”.19 For example, ‘national security’ is nowhere defined in statute whereas the definition of ‘serious crime’ includes “conduct by a large number of persons in pursuit of a common purpose”.20 As Bailey, Harris and Jones note, in relation to the Police Act 1997 in which the wording is identical, this could, for example, allow the use of these powers against peaceful protesters.21 A further concern is that, although there are limits to the durations of warrants, the Secretary of State has the power to renew them repetitively and indefinitely if necessary22 – “arguably this provision…means that the duration is not really limited”.23 Moreover, while a targeted warrant has to identify a single person or a single set of premises as the subject of interception,24 the broad interpretation of s. 8(4) allows for the bulk interception of external communications. This mass interception of communications will be discussed in more detail in relation to the Investigatory Powers Act 2016, but in short, it means that potentially billions of communications could be intercepted per day. However, even with a targeted warrant, once issued, it will allow all the communications of the identified person or premises to be intercepted – in other words, a single interception warrant could cover the communications of an entire workplace.25 Thus the powers to intercept under RIPA are immensely wide. The second issue to consider is the extent to which powers to intercept under RIPA are used. There has certainly been a massive increase in the use of these powers, with the number of interception warrants issued per year having more than doubled since RIPA was first introduced: in 2001 the number of warrants issued was 1,31426 whereas in 2014 the number was 2,795. 27 By 2011, more than 20,000 interception warrants had been issued in England, Wales and Scotland since RIPA had come into force – compare this with the 12,799 warrants issued between 1990 and 1999.28 This drastic increase in the use of interception powers certainly signals that we are well on our way to a surveillance society – if not already living in one. The third and final issue is whether those granted with powers under RIPA are adequately scrutinised and held accountable. Criticism seems to arise especially from the lack of ex ante judicial scrutiny – there is no judicial oversight at the authorisation stage 18

ibid s 5(3). Ewing (n 6) 75. 20 RIPA (n 3), s 81(3)(b). 21 Stephen Bailey and Nick Taylor, Bailey, Harris and Jones: Civil Liberties Cases, Materials and Commentary (6th edn, OUP 2009) 579. 22 RIPA (n 3), s 9. 23 Julia Hörnle, ‘How to Control Interception – Does the UK Strike the Right Balance?’ (2010) 26 Computer Law and Security Review 649, 653. 24 RIPA (n 3), s 8(1). 25 JUSTICE, ‘Freedom from Suspicion: Surveillance Reform for a Digital Age’ (JUSTICE) 40 <http://www.statewatch.org/news/2011/nov/uk-ripa-justice-freedom-from-suspicion.pdf> accessed 11 March 2016. 26 Interception of Communications Commissioner’s Office, ‘Annual Report of the Interception of Communications Commissioner for 2001’ (TSO 2002) 18 <http://www.ioccouk.info/docs/2001%20Annual%20Report.pdf> accessed 11 March 2016. 27 Interception of Communications Commissioner’s Office, ‘Annual Report of the Interception of Communications Commissioner for 2014’ ( HMSO 2015) 26 <http://www.iocco-uk.info/docs/IOCCO%20Report%20March%202015%20(Web).pdf> accessed 11 March 2016. 28 JUSTICE (n 24) 41. 19

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of warrants. Despite the fact that the ECtHR has consistently emphasized “the importance of judicial supervision in ensuring that the power of government to intercept communications is not exercised unfettered”,29 proposals for judicial rather than ministerial authorisations have not been accepted. These proposals are supported by “the principles of respect for individual rights and the separation of powers”30, the latter being undermined in the sense that the procedure essentially involves the minister granting a warrant to himself.31 The Home Office’s arguments for the executive as the most suitable body to deal with questions of national security and economic well-being are to be rejected as there is no real reason why judges would be unable to deal with these subjectareas, not least because they fall within the scope of their existing powers to grant warrants under the Official Secret Acts.32 More importantly, an independent judge is surely more likely to scrutinize human rights when issuing a warrant than the “political arm of government”, who may be more concerned with issues such as operational efficiency.33 There is, however, some judicial oversight of the interception procedure, even if this is retrospective. The role of the Interception of Communications Commissioner34 (ICC) is to keep the system under review through monitoring and reporting, whereas the Investigatory Powers Tribunal35 (IPT) is the only body that hears complaints about the activities permitted under the Act. However, the major deficiency here is the fact that people are never told that they have been the subject of surveillance – not even after it has ended.36 Thus the ICC and the IPT are not likely to be alerted to errors,37 naturally diminishing the chances of abuse ever being uncovered. Furthermore, even when unlawful interception does come to ligh (e.g. as a result of whistleblowing) there is a major concern about a lack of effectiveness in holding the government accountable. In 2011, a JUSTICE report revealed that in the past decade the IPT had only upheld 10 complaints against public bodies out of 1,120, signifying an astonishingly low success rate of 0.9%.38 As regards to the ICC, a main concern is impotency. For example, the ICC cannot cancel a warrant since its role is merely to observe rather than enforce. Another main concern is workload, with the number of warrants growing remarkably and the ICC now responsible for keeping 795 agencies in check, as opposed to the original nine in s. 6(2) RIPA.39 This is because the ICC now, additionally, undertakes inspection of interceptions in prisons and reviews the exercise of powers to acquire communications data.40 Furthermore, a lack of efficiency is a problem here too as the ICC, despite frequently acknowledging errors, has never found a warrant to be unjustified.41 This section concludes that RIPA has indeed posed a threat to our human rights and democracy, and so has already afforded us the status of a surveillance society. This is not 29

Esen (n 11) 177; see eg Klass v Germany [1979-80] 2 EHRR 214 and Kopp v Switzerland [1998] ECHR 18. 30 Yaman Akdeniz, ‘Regulation of Investigatory Powers Act 2000: Part 1: Bigbrother.gov.uk: State surveillance in the age of information and rights’ [2001] Criminal Law Review 73, 78. 31 Ewing (n 6) 70. 32 Akdeniz (n 31) 78. 33 Hörnle (n 22) 652. 34 RIPA (n 3), s 57. 35 ibid, s 65. 36 Ewing (n 6) 71. 37 Akdeniz (n 31) 79. 38 JUSTICE (n 24) 138. 39 Ewing (n 6) 76. 40 ibid 76. 41 Anthony Bradley, Keith Ewing and Christopher Knight, Constitutional and Administrative Law (16th edn, Pearson 2014) 429.

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only because of the wide-ranging powers it grants and their vast use, but also because, overall, it “only fulfills the task of ensuring adequate protection against abuse of the powers in a superficial manner, providing a veneer of protection which masks a number of major deficiencies”.42 3. THE FUTURE OF INTERCEPTION POWERS Asserting that we, in fact, already live in a surveillance society does not mean that it is the end of the matter – our right to privacy will continue to erode as the state’s powers grow more and more intrusive. Therefore, it is crucial to examine what the future of state interception of communications looks like. The focus will be on the widely condemned Investigatory Powers Act 2016 (IPA), which was passed into law last November. Often referred to as the “Snoopers’ Charter”, it was introduced in November 2015 in order to set out a “modern legal framework, which brings together current [investigatory] powers in a clear and comprehensible way”.43 In addition, it was promised that the Act would strengthen safeguards and establish a “world-leading oversight regime”.44 A thorough analysis of IPA will reveal whether these promises were kept. Already from the outset, there were concerns about the pace in which the Act was scheduled to pass through parliament. The Home Secretary, Theresa May, was accused of rushing the controversial Act into law in order to avoid scrutiny.45 The controversy of the powers granted under IPA suggests that this may very well be a valid accusation. The scope of interception warrants is perhaps the most drastic change to the scheme under RIPA.46 Previously, warrants required the identification of one person or a single set of premises as the subject of interception.47 IPA significantly widens this scope by allowing warrants to additionally cover organisations, groups of people who share a common purpose, and multiple persons, organisations or premises where it is for the purpose of the same investigation.48 This type of thematic interception “provides for an open-ended warrant that could encompass many hundreds or thousands of people”49 and therefore imposes wholly insufficient limits on the powers of the state. In addition, the time periods for warrants have been extended, with all warrants issued by the Secretary of State now staying in force for 6 months50; whereas, under RIPA, warrants in the name of

Bhatt (n 9) 310. Home Office and the Right Honourable Theresa May MP, ‘Oral Statement to Parliament – Home Secretary: Publication of Draft Investigatory Powers Bill’ (HMSO 2015) <https://www.gov.uk/government/speeches/home-secretary-publication-of-draft-investigatory-powers-bill> accessed 11 March 2016. 44 ibid. 45 Tom McTague, ‘Investigatory Powers Bill: Theresa May accused of rushing snoopers’ charter into law to avoid scrutiny’, Independent (London, 27 February 2016) <http://www.independent.co.uk/news/uk/politics/investigatory-powers-bill-theresa-may-accused-ofrushing-snoopers-charter-into-law-to-avoid-scrutiny-a6900566.html> accessed 11 March 2016. 46 Liberty, ‘Liberty’s Written Evidence on the Draft Investigatory Powers Bill’ (Liberty 2015) 32 <https://www.liberty-humanrights.org.uk/sites/default/files/Liberty%27s%20written%20evidence%20on%20the%20Draft%20Investiga tory%20Powers%20Bill%20%28December%202015%29.pdf> accessed 11 March 2016. 47 RIPA (n 3), s 8(1). 48 Investigatory Powers Act 2016, s 17. 49 Liberty (n 47) 32. 50 IPA (n 49), s 32(2). 43

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preventing serious crime could ‘only’ last for 3 months.51 The repetitive and indefinite renewal of warrants remains a problem.52 Another area of grave concern is the bulk interception of external communications provided for under the new Act.53 Had agencies not already been intercepting in bulk through the broad interpretation of the vaguely worded s. 8(4) RIPA, this would certainly be the most alarming development in the law. However, it remains unsettling as it is the first time bulk interception has been given explicit statutory footing. Bulk warrants may be targeted at entire populations and whole telecommunication systems, without any requirement of suspicion, presenting a “radical departure from common and human rights law principles”.54 There are many who argue that the level of intrusiveness that these bulk powers provide for cannot be said to be lawful,55 namely because they are unlikely to satisfy the tests of necessity and proportionality under the ECHR. Privacy International states that the general lack of specificity that is inherent in mass surveillance is “intrinsically disproportionate and runs afoul of explicit guidance from the ECtHR”56 whereas Amnesty, drawing on the lack of reasonable suspicion, argues that “indiscriminate mass surveillance is never a proportionate interference with the right to privacy…and can thus never be lawful under the Human Rights Act 1998 and/or ECHR.”57 Despite the IPT’s recent decision that the regime under RIPA governing the bulk interception of external communications is lawful and compliant with the ECHR,58 the issue is far from being resolved. Liberty and the other NGOs have taken the case to the ECtHR and it remains to be seen whether the Court will rule in their favour.59 Furthermore, although the main purpose of a bulk interception warrant must be to intercept ‘over-seas related communications’,60 the regime under RIPA and IPA, in fact, allow the mass interception of “vast swathes of domestic communications” as well.61 This is because ‘over-seas related communications’ include situations in which either the sender or the recipient is in the UK, but their correspondent is not.62 Moreover, the government has confirmed that “Facebook, Twitter, YouTube and web searches on Google - as well as webmail services such as Hotmail and Yahoo [are] classified as external communications”.63

RIPA (n 3), s 9(6)(c). IPA (n 49), s 33. 53 ibid, s 136. 54 Liberty (n 47) 41. 55 Joint Committee on the Draft Investigatory Powers Bill, ‘Draft Investigatory Powers Bill Report’ (TSO 2016) 89 <http://www.publications.parliament.uk/pa/jt201516/jtselect/jtinvpowers/93/93.pdf> accessed 11 March 2016. 56 Privacy International, ‘Written Evidence for the Joint Committee on the Draft Investigatory Powers Bill IPB0120’ (TSO 2016) para 147. <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatorypowers-bill-committee/draft-investigatory-powers-bill/written/26371.html> accessed 11/03/2016. 57 Amnesty International, ‘Written Evidence for the Joint Committee on the Draft Investigatory Powers Bill IPB0074’ (TSO 2016) para 6. <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatorypowers-bill-committee/draft-investigatory-powers-bill/written/26308.html> accessed 11/03/2016. 58 Liberty and Others [2014] UKIPTrib 13_77-H. 59 BBC News, ‘European court challenge to UK surveillance’, BBC News (London, 10 April 2015) <http://www.bbc.co.uk/news/technology-32251699> accessed 11/03/2016 60 s 136(2) IPA. 61 Liberty (n 47) 41. 62 IPA (n 49) s 136(3). 63 BBC News, ‘Google and Facebook can be legally intercepted, says UK spy boss’, BBC News (London, 17 June 2014) <http://www.bbc.co.uk/news/technology-27887639> accessed 11 March 2016. 52

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While the main justification for these bulk powers seems to be the safeguarding of national security and the identification of external threats,64 there appears to be no concrete evidence of mass interception (rather than, for example, the bulk collection of communications data) successfully thwarting terrorist attacks. In fact, many argue that the bulk interception of communications is actually counter-productive in this aspect; the “massive collect-it-all, dragnet approach to intelligence” has made “terrorist activity more difficult to spot and prevent”.65 Bulk interception results in an ‘overdose’ of information from which it is impossible to sort out what is needed to know and what is not.66 In other words, “the bigger the haystack, the harder the terrorist to find”.67 Therefore, it can be argued that targeted interception is actually more suitable for the prevention of terrorism, as it gives the state “the needles, and anything closely associated with them, right from the start”.68 Moreover, the Act not only expands the powers to intercept but also fails to adequately address some of the main sources of anxiety under RIPA. First of all, the law still makes no attempt to clarify the grounds on which warrants may be issued. Particularly the meaning of ‘national security’ remains a mystery with the Prime Minister labelling a number of arbitrary things, including the Labour leader,69 as threats to the UK. Secondly, ex post judicial oversight is likely to remain weak as there is still no requirement to notify those who have been subject to surveillance, save in situations where the person has been subject to a ‘serious error’ and it is in the ‘public interest’ to inform them.70 The Act creates a new body of commissioners, headed by the Investigatory Powers Commissioner (IPC),71 which will merge a number of existing roles, including that of the ICC. Although it is possible that a new single oversight body would be more powerful and make the supervision procedure clearer, concerns have been expressed about the independence of the judicial commissioners who will be working for the IPC.72 This is a valid concern as the judges will now not only be responsible for keeping the system under review but will also be a part of the system for the authorisation of warrants.73 While IPA makes an attempt to offer ex ante judicial oversight, its measures are deeply flawed. The Secretary of State will continue to issue warrants, but they need to now be reviewed by a judicial commissioner before coming into force.74 This was said to provide for a ‘double-lock’ of executive and judicial approval for the use of interception 64

Right Honourable Theresa May MP, ‘Written Evidence for the Joint Committee on the Draft Investigatory Powers Bill IPB0165’ (TSO 2016) <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatorypowers-bill-committee/draft-investigatory-powers-bill/written/27130.html> accessed 11 March 2016. 65 Coleen Rowley, ‘The Bigger the Haystack, the Harder the Terrorist is to Find’ The Guardian (London, 28 November 2014). <http://www.theguardian.com/commentisfree/2014/nov/28/bigger-haystack-harderterrorist-communication-future-attacks> accessed 11 March 2016. 66 Ruth Alexander, ‘Terror watch lists: Can you keep tabs on every suspect?’ BBC Magazine (London, 2 June 2013) <http://www.bbc.co.uk/news/magazine-22718000> accessed 11 March 2016. 67 Rowley (n 67). 68 William Binney, ‘Oral Evidence for the Joint Committee on the Draft Investigatory Powers Bill’ (TSO 2016) Q 239. <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draftinvestigatory-powers-bill-committee/draft-investigatory-powers-bill/oral/26679.html> accessed 11 March 2016. 69 Jon Stone, ‘David Cameron Claims Jeremy Corbyn is a “threat to national security”’ Independent (London, 13 September 2015). <http://www.independent.co.uk/news/uk/politics/david-cameron-claimsjeremy-corbyn-is-a-threat-to-national-security-10498651.html> accessed 11 March 2016. 70 IPA (n 49) s 231. 71 ibid s 227. 72 Amnesty International (n 58) para 33. 73 IPA (n 49) s 23. 74 IPA (n 49) s 23.

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powers,75 but in reality the judicial commissioner acts as merely a ‘rubber stamp’. Judges will not have any real power to block a warrant. Judicial commissioners “must apply the same principles as would be applied by a court on an application for judicial review.”76 Therefore, judicial review proceedings are concerned with the lawfulness of a decision rather than its substance and thus, as stated by Conservative MP Davis, “the home secretary would have to behave in an extraordinary manner not to get his or her warrant approved”.77 In this way, IPA provides merely for judicial review rather than judicial authorisation – two fundamentally different things. Even if a judicial commissioner does refuse an application for a warrant, the Secretary of State can simply make a fresh application to the IPC rather than to have to appeal against the decision.78 Furthermore, it is still the Secretary of State, rather than a judge, who is to cancel warrants that are no longer justified,79 and many types of warrants can still be modified retrospectively by the Secretary of State without any requirement of judicial approval. Modifications can be considerable in that they can relate to targeted persons, premises, organisations, et cetera. Thus, the provisions in IPA hardly represent a ‘world-leading oversight regime’, especially considering that in most common law jurisdictions, including the US and South Africa, warrants have to be issued by judges.80 What can be concluded is that promises have been broken. IPA represents “a significant missed opportunity”,81 failing to reform any of the main concerns under RIPA. What is more, IPA expands the state’s powers to intercept communications, posing an even greater threat than the regime under RIPA to the common values that underpin democracy. Thus we are likely to only sink deeper into a surveillance society with our right to privacy continuing to erode. However, the new Act should perhaps be the least of our worries, with the Conservative party planning to scrap the Human Rights Act 1998.82 With no general right to privacy under English common law, its protection currently relies solely on Article 8 of the ECHR which the Act incorporates into UK law.

Home Office and the Right Honourable Theresa May MP (n 44). IPA (n 49) s 23(2). 77 Andrew Sparrow, ‘May wrong to say surveillance bill creates judicial authorisation for interception, says Liberty – live’ The Guardian (London, 4 November 2015) <http://www.theguardian.com/politics/blog/live/2015/nov/04/surveillance-internet-snoopers-chartermay-plans-politics-live?page=with:block-563a2f5fe4b08eefa4b96e03#block563a2f5fe4b08eefa4b96e03> accessed 11 March 2016. 78 IPA (n 49) s 23(5). 79 IPA (n 49) s 39. 80 Esen (n 11) 177. 81 Intelligence and Security Committee of Parliament, ‘Report on the Draft Investigatory Powers Bill’ (HMSO 2016) <https://b1cba9b3-a-5e6631fd-ssites.googlegroups.com/a/independent.gov.uk/isc/files/20160209_ISC_Rpt_IPBill%28web%29.pdf?attacha uth=ANoY7coblijgLm9LGw42xT6hSjW21HZ0ne5cVqmvvkoLXL7k0gRys2AnDjieHtSGFA1v00tVBY9 Q-EK04oYya72EU8S_m7S9Wx5RCPtymXCoqV0KjWUwpcxKnKgFsKX7PANwcv6xnRSFqGEjtyY01iHryH5RkLitNocX_g89cFpq2P9 n6xtAwzP8PFXRLzX6TqLdX32HcK2aooNhKum8UQ0kbieNah1jCeFy2_OfKtnVFGQJpr2kIzfXZWzZI85ItrMI7U0tLs&attredirects= 0> accessed 11 March 2016. 82 Jon Stone, ‘The Tory plan to scrap the Human Rights Act just moved one step closer’ Independent (London, 8 September 2015) <http://www.independent.co.uk/news/uk/politics/the-tory-plan-to-scrap-thehuman-rights-act-just-moved-one-step-closer-10491173.html> accessed 11/03/2016. 76

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It has been suggested that the state’s extensive powers to intercept communications mean that we already live in a surveillance society. The question that needs to be considered next is whether this shift has taken place with the public’s informed support, or whether we have ‘sleepwalked’ into the current situation. Sleepwalking, in this context, is generally understood as the engagement in an activity without interest, enthusiasm or awareness of the possible consequences. It will be argued that most of us have indeed been sleepwalking, and continue to do so, as can be evidenced by the lack of concern amongst the population. This apathy is thought to stem mainly from the state’s convincing justifications for increasing surveillance and the public’s struggle to grasp the meaning and value of privacy. The latter will be discussed extensively in the hopes of encouraging people to challenge the state’s growing surveillance powers under IPA. Globally, concerns about mass surveillance have certainly been growing in recent years, especially in the aftermath of the Snowden revelations in 2013. A global survey conducted in 2014 found that two thirds (64%) of users were more concerned about online privacy than they had been the year before.83 However, despite the Snowden documents revealing that both US and British intelligence agencies were engaging in mass surveillance, the UK is still one of the countries least concerned by the state’s ‘spying’ of our internet and mobile communications. According to Amnesty, the UK had the lowest proportion of citizens opposed to it (44%) in 2015.84 It seems then that the Snowden documents did not have the desired impact on British attitudes towards surveillance – in other words, they were not enough to ‘wake us up’. One of the reasons for this might be the state’s convincing justifications for the expansion of interception powers. Particularly the threat of terrorism seems to invoke a strong emotional response in favour of increased state powers to intercept: a staggering 71% “prioritise reducing the threat posed by terrorists and serious criminals even if this erodes peoples’ right to privacy”.85 This is understandable: it is not surprising that surveillance tends to win when “balancing a vague and poorly articulated privacy right against state interests such as the prevention of terrorist attacks”.86 In other words, “pleas to ‘balance’ the harms of privacy invasion against the asserted gains lack visceral force”.87 However, this indifference towards privacy suggests a grave lack of understanding about its value. It is, after all, those who are “unable to understand why privacy is important” and who lack the “conceptual tools necessary to engage in meaningful debates about its value” who will be “particularly susceptible to arguments that privacy should be curtailed”.88 It is, therefore, crucial to consider why privacy is so valuable.

Centre for International Governance Innovation (CIGI) and Ipsos, ‘The CIGI-Ipsos Global Survey on Internet Security and Trust’ (Centre for International Governance Innovation 2014) <https://www.cigionline.org/internet-survey#online-privacy> accessed 11 March 2016. 84 Amnesty International, ‘Global Opposition to USA Big Brother Mass Surveillance’ (Amnesty International 2015) <https://www.amnesty.org/en/press-releases/2015/03/global-opposition-to-usa-bigbrother-mass-surveillance/> accessed 11 March 2016. 85 TNS-BMRB Polling, ‘TNS Public Opinion Monitor Questionnaire and Data Tables’ (TNS-BMRB 2014) 13 <http://www.tns-bmrb.co.uk/sites/tns-bmrb/files/pom-data-tables-03-feb-2014_1391424451.pdf> accessed 11 March 2016. 86 Neil Richards, ‘The Dangers of Surveillance’ (2013) 126 Harvard Law Review 1934, 1951. 87 Julie Cohen, ‘What Privacy Is For’ (2013) 126 Harvard Law Review 1904, 1904. 88 Benjamin Goold, “Surveillance and the Political Value of Privacy” (2009) 1 Amsterdam Law Forum 3, 3.

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The interception of communications impinges on a number of human rights and interests, but the right to privacy is commonly viewed as being at the root of all of them.89 However, the main problem with privacy is that it is “notoriously difficult to define”.90 The classic formulation of privacy as the ‘right to be let alone’91 hardly sheds any light on its value. Furthermore, there is a common misconception surrounding the right to privacy, which is that it is only vital when you have something to hide. Snowden, quoted in The Guardian, attempted to obliterate this argument by stating: “When you say I don’t care about the right to privacy because I have nothing to hide, that is no different than saying I don’t care about freedom of speech because I have nothing to say…”92 In other words, simply because one chooses to disregard a right, does not mean that everyone should. Moreover, those who hold this misconception are missing the point: we should protect our right to privacy “not because we have something to hide, but because it is indicative of an expansion state power”.93 However, it is true to say that the impact of individual incursions of privacy is perhaps difficult to detect. Therefore, it might help to compare the erosion of privacy to environmental damage, the cumulative effect of which can be highly significant.94 A further problem is that the infringement of privacy is all too often construed as only a personal matter,95 when, in fact, it carries with it also social and political implications.96 The individual dimension of the right to privacy might be the most commonly cited, but it is presumably also the most difficult one to understand. Privacy’s status as a right primarily has its roots in ideas of autonomy, self-determination and human dignity. It allows us to “express our individuality” and to “think and create in freedom”.97 We cannot flourish as human beings if we are not afforded some privacy – in other words, there is no place for innovation if we fear we are constantly being watched. As Cohen argues, innovation does not merely require independence of mind but also room for tinkering, which can only thrive fully in an environment that respects privacy.98 Richards also refers to innovation through his intellectual-privacy theory which suggests that “new ideas often develop best away from the intense scrutiny of public exposure.”99 Closely related to innovation is the issue of self-censorship, in terms of action, speech and even belief, which has been shown to be one of the detrimental results of a lack of privacy.100 Orwell’s novel Nineteen Eighty-Four101 demonstrated how “the fear of being watched causes people to act and think differently from the way they might otherwise”.102 89

David Anderson, ‘A Question of Trust: Report of the Investigatory Powers Review’ (OGL 2015) 25. <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/434399/IPR-Report-WebAccessible1.pdf> accessed 11 March 2016. 90 Bradley, Ewing and Knight (n 42) 418. 91 Samuel Warren and Louis Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193, 205. 92 Alan Rusbridger, Janine Gibson, Ewen MacAskill, ‘Edward Snowden: NSA reform in the US is only the beginning’ The Guardian (London, 22 May 2015). <http://www.theguardian.com/usnews/2015/may/22/edward-snowden-nsa-reform> accessed 11 March 2016. 93 Goold (n 91) 5. 94 Julia Angwin, Dragnet Nation: A Quest for Privacy, Security and Freedom in a World of Relentless Surveillance (Times Books 2014). 95 David Lyon, Surveillance After Snowden (Polity Press 2015) 25. 96 Anderson (n 93) 27. 97 ibid 27. 98 Cohen (n 91) 1918. 99 Richards (n 90) 1946. 100 Jerry Kang, ‘Information Privacy in Cyberspace Transactions’ (1998) 50 Stanford Law Review 1193, 1260. 101 Orwell (n 7). 102 Richards (n 90) 1948.

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With privacy dead, people will be deterred from pursuing ideas or projects that others might find deviant or radical, and “individuals [will be] inclined to make choices that conform to mainstream expectations".103 Pervasive surveillance thus threatens our “society's foundational commitments to intellectual diversity and eccentric individuality”.104 Privacy is also important in a social sense, as it “facilitates trust, friendship and intimacy: qualities that allow us to relate freely to each other and that form the essential basis for a diverse and cohesive society”.105 Valuable relationships are based on “exclusivity, intimacy and the sharing of personal information”, but how do we form these if we cannot choose who we share our private lives with?106 It can therefore be argued that “privacy is not merely a good technique for furthering these fundamental relations; rather without privacy they are simply inconceivable.”107 Politically, the right to privacy is essential in at least two ways. First, it is important for the reinforcing of other constitutional rights,108 such as the freedom of political expression and the right to a fair trial. As Anderson so succinctly put it: “Just as democracy is enabled by the privacy of the ballot box, so the expression of dissenting views is enhanced by the ability to put them across anonymously”.109 This is closely related to the points made about innovation and self-censorship: many of us will not dare challenge mainstream politics or the current government without the veil of anonymity. Instead, we will try and suppress our controversial opinions. Privacy is thus essential for the free expression of our views. In relation to the right to a fair trial, it is not difficult to understand why there “can be no fairness in litigation involving the state if one party to it has the ability to monitor the privileged communications of the other”.110 Secondly, the right to privacy is important politically because it “empowers the individual against the state”.111 At the root of this argument is the clichéd expression ‘knowledge is power’. As Richards argues, surveillance is harmful because of “its effect on the power dynamic between the watcher and the watched”.112 The watcher, in other words the state, gains “greater power to influence or direct the subject of surveillance”.113 This power can be used for a wide spectrum of dangerous behaviours, such as control, manipulation, coercion, blackmail, persuasion and discrimination. It is no wonder then that privacy incursions have been referred to as the “primary weapon of the tyrant”.114 Historical examples, such as the surveillance of members of the Communist Party of Great Britain and that of the suffragettes, have provided us with a clear illustration of how the state, through surveillance, seeks to control those who support unpopular causes. To conclude, “anyone who cares about freedom, democracy and justice in the 21st century should be concerned about the rampant growth of government surveillance”.115 103

Lilian Mitrou, ‘The Impact of Communications Data Retention on Fundamental Rights and Democracy – The Case of the EU Data Retention Directive’ in Kevin Haggerty and Minas Samaras (eds), Surveillance and Democracy (Routledge-Cavendish 2010) 138. 104 Richards (n 90) 1948. 105 Anderson (n 93) 27. 106 Goold (n 92) 4. 107 Charles Fried, ‘Privacy’ (1968) 77 The Yale Law Journal 475, 477. 108 Bradley, Ewing and Knight (n 42) 419. 109 Anderson (n 93) 27. 110 ibid 28. 111 ibid 28. 112 Richards (n 90) 1935. 113 ibid 1953. 114 Edward Bloustein, ‘Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser’ (1964) 39 New York University Law Review 962, 974. 115 Lyon (n 99) 2.

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However, it should be noted that the arguments made here are not to be taken to mean that there should be an unqualified right to privacy. Few human rights are absolute: most of them require the balancing of competing rights and interests. It is accepted that the infringement of the right to privacy is, in some cases, “a necessary or expedient weapon in the fight against organized crime and other unlawful acts which threaten public safety and national security”.116 The argument is simply that all powers that are likely to impinge on human rights should be given serious consideration and that infringements of privacy should always be in accordance with the law, necessary and proportionate, as required by Article 8 of the ECHR. 5. CONCLUSION The regime on the interceptions of communications under RIPA signifies that we already live in a surveillance society in which the extent of state invasions of privacy threatens the fundamental human rights that underpin democracy. Our right to privacy will only continue to be undermined as the state has now been afforded increasingly intrusive powers under IPA. As Orwell’s Nineteen Eighty-Four117 has shown us, there is a very fine line between extensive surveillance powers and absolute state control. If we continue sleepwalking, we might one day find ourselves in a totalitarian society where the state recognises no limits to its authority and where our right to privacy has completely eroded. For this reason, it is time to wake up, recognise the value of privacy, and challenge the state’s ever-growing surveillance powers.

116 117

Bradley, Ewing and Knight (n 42) 418. Orwell (n 7).

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Primary Sources Cases Kennedy v United Kingdom [2011] 52 EHRR 4. Klass v Germany [1979-80] 2 EHRR 214. Kopp v Switzerland [1998] ECHR 18. Liberty and Others [2014] UKIPTrib 13_77-H. Legislation Human Rights Act 1998. Interception of Communications Act 1985. Investigatory Powers Act 2016. Official Secrets Act 1911. Official Secrets Act 1989. Police Act 1997. Regulation of Investigatory Powers Act 2000. Secondary Sources Akdeniz Y, ‘Regulation of Investigatory Powers Act 2000: Part 1: Bigbrother.gov.uk: State surveillance in the age of information and rights’ [2001] Criminal Law Review 73. Alexander R, ‘Terror watch lists: Can you keep tabs on every suspect?’ BBC Magazine (London, 2 June 2013) <http://www.bbc.co.uk/news/magazine-22718000> accessed 11 March 2016. Amnesty International, ‘Global Opposition to USA Big Brother Mass Surveillance’ (Amnesty International 2015) <https://www.amnesty.org/en/pressreleases/2015/03/global-opposition-to-usa-big-brother-mass-surveillance/> accessed 11 March 2016. Amnesty International, ‘Written Evidence for the Joint Committee on the Draft Investigatory Powers Bill IPB0074’ (TSO 2016). <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/dra ft-investigatory-powers-bill-committee/draft-investigatory-powersbill/written/26308.html> accessed 11/03/2016.

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Anderson D, ‘A Question of Trust: Report of the Investigatory Powers Review’ (OGL 2015). <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/434399/I PR-Report-Web-Accessible1.pdf> accessed 11 March 2016. Angwin J, Dragnet Nation: A Quest for Privacy, Security and Freedom in a World of Relentless Surveillance (Times Books 2014). Ashworth A, 'Human Rights: Secret Surveillance under Powers in the Regulation of Investigatory Powers Act 2000' [2010] Criminal Law Review 868. Bailey S and Taylor N, Bailey, Harris and Jones: Civil Liberties Cases, Materials and Commentary (6th edn, OUP 2009). BBC News, ‘Google and Facebook can be legally intercepted, says UK spy boss’, BBC News (London, 17 June 2014) <http://www.bbc.co.uk/news/technology-27887639> accessed 11 March 2016. BBC News, ‘European court challenge to UK surveillance’, BBC News (London, 10 April 2015) <http://www.bbc.co.uk/news/technology-32251699> accessed 11/03/2016. Bennetto J,‘Big Brother Britain 2006: “We are waking up to a surveillance society all around us”’ Independent (London, 2 November 2006) <http://www.independent.co.uk/news/uk/crime/big-brother-britain-2006-we-are-wakingup-to-a-surveillance-society-all-around-us-5331152.html> accessed 11 March 2016. Hiral Bhatt, ‘RIPA 2000: A Human Rights Examination’ (2006) 10 The International Journal of Human Rights 285. Binney W, ‘Oral Evidence for the Joint Committee on the Draft Investigatory Powers Bill’ (TSO 2016). Bloustein E, ‘Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser’ (1964) 39 New York University Law Review 962. Bradley A, Ewing K and Knight C, Constitutional and Administrative Law (16th edn, Pearson 2014). Centre for International Governance Innovation (CIGI) and Ipsos, ‘The CIGI-Ipsos Global Survey on Internet Security and Trust’ (Centre for International Governance Innovation 2014) <https://www.cigionline.org/internet-survey#online-privacy> accessed 11 March 2016. Cohen J, ‘What Privacy Is For’ (2013) 126 Harvard Law Review 1904. Esen R, ‘Intercepting Communications “in Accordance with the Law”’ (2012) 76 Journal of Criminal Law 164. Ewing K, Bonfire of the Liberties: New Labour, Human Rights, and the Rule of Law (OUP 2010).

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Ford R, ‘Beware rise of Big Brother state, warns data watchdog’ The Times (London, 16 August 2004) <http://www.thetimes.co.uk/tto/news/uk/article1927810.ece> accessed 11 March 2016. Fried C, ‘Privacy’ (1968) 77 The Yale Law Journal 475. Goold B, “Surveillance and the Political Value of Privacy” (2009) 1 Amsterdam Law Forum 3. Hörnle J, ‘How to Control Interception – Does the UK Strike the Right Balance?’ (2010) 26 Computer Law and Security Review 649. Home Office and the Right Honourable Theresa May MP, ‘Oral Statement to Parliament – Home Secretary: Publication of Draft Investigatory Powers Bill’ (HMSO 2015) <https://www.gov.uk/government/speeches/home-secretary-publication-of-draftinvestigatory-powers-bill> accessed 11 March 2016. Home Office and the Right Honourable Theresa May MP, ‘News story: Investigatory Powers Bill published’ (2015) <https://www.gov.uk/government/news/investigatorypowers-bill-published> accessed 11 March 2016. Intelligence and Security Committee of Parliament, ‘Report on the Draft Investigatory Powers Bill’ (HMSO 2016) <https://b1cba9b3-a-5e6631fd-ssites.googlegroups.com/a/independent.gov.uk/isc/files/20160209_ISC_Rpt_IPBill%28we b%29.pdf?attachauth=ANoY7coblijgLm9LGw42xT6hSjW21HZ0ne5cVqmvvkoLXL7k0 gRys2AnDjieHtSGFA1v00tVBY9Q-EK04oYya72EU8S_m7S9Wx5RCPtymXCoqV0KjWUwpcxKnKgFsKX7PANwcv6xnRSFqGEjtyY01iHryH5RkLitN ocX_g89cFpq2P9n6xtAwzP8PFXRLzX6TqLdX32HcK2aooNhKum8UQ0kbieNah1jCeFy2_OfKtnVFGQJpr2kIzfXZWzZI85ItrMI7U 0tLs&attredirects=0> accessed 11 March 2016. Interception of Communications Commissioner’s Office, ‘Annual Report of the Interception of Communications Commissioner for 2001’ (TSO 2002) 18 <http://www.iocco-uk.info/docs/2001%20Annual%20Report.pdf> accessed 11 March 2016. Interception of Communications Commissioner’s Office, ‘Annual Report of the Interception of Communications Commissioner for 2002’ (TSO 2003) 3 <http://www.iocco-uk.info/docs/2002%20Annual%20Report.pdf accessed 11 March 2016. Interception of Communications Commissioner’s Office, ‘Annual Report of the Interception of Communications Commissioner for 2014’ ( HMSO 2015) 26 <http://www.iocco-uk.info/docs/IOCCO%20Report%20March%202015%20(Web).pdf> accessed 11 March 2016. Joint Committee on the Draft Investigatory Powers Bill, ‘Draft Investigatory Powers Bill Report’ (TSO 2016) 89.

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<http://www.publications.parliament.uk/pa/jt201516/jtselect/jtinvpowers/93/93.pdf> accessed 11 March 2016. JUSTICE, ‘Freedom from Suspicion: Surveillance Reform for a Digital Age’ (JUSTICE) 40 <http://www.statewatch.org/news/2011/nov/uk-ripa-justice-freedom-fromsuspicion.pdf> accessed 11 March 2016. Kang J, ‘Information Privacy in Cyberspace Transactions’ (1998) 50 Stanford Law Review 1193. Liberty, ‘Liberty’s Written Evidence on the Draft Investigatory Powers Bill’ (Liberty 2015) 32 <https://www.liberty-humanrights.org.uk/sites/default/files/Liberty%27s%20written%20evidence%20on%20the%20 Draft%20Investigatory%20Powers%20Bill%20%28December%202015%29.pdf> accessed 11 March 2016. Lyon D, Surveillance After Snowden (Polity Press 2015). McTague T, ‘Investigatory Powers Bill: Theresa May accused of rushing snoopers’ charter into law to avoid scrutiny’, Independent (London, 27 February 2016) <http://www.independent.co.uk/news/uk/politics/investigatory-powers-bill-theresa-mayaccused-of-rushing-snoopers-charter-into-law-to-avoid-scrutiny-a6900566.html> accessed 11 March 2016. Mitrou L, ‘The Impact of Communications Data Retention on Fundamental Rights and Democracy – The Case of the EU Data Retention Directive’ in Kevin Haggerty and Minas Samaras (eds), Surveillance and Democracy (Routledge-Cavendish 2010). Orwell G, Nineteen Eighty-Four (Secker & Warburg 1949). Privacy International, ‘Written Evidence for the Joint Committee on the Draft Investigatory Powers Bill IPB0120’ (TSO 2016) <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/dra ft-investigatory-powers-bill-committee/draft-investigatory-powersbill/written/26371.html> accessed 11/03/2016. Richards N, ‘The Dangers of Surveillance’ (2013) 126 Harvard Law Review 1934. Right Honourable Theresa May MP, ‘Written Evidence for the Joint Committee on the Draft Investigatory Powers Bill IPB0165’ (TSO 2016) <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/dra ft-investigatory-powers-bill-committee/draft-investigatory-powersbill/written/27130.html> accessed 11 March 2016. Rowley C, ‘The Bigger the Haystack, the Harder the Terrorist is to Find’ The Guardian (London, 28 November 2014) <http://www.theguardian.com/commentisfree/2014/nov/28/bigger-haystack-harderterrorist-communication-future-attacks> accessed 11 March 2016.

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Rusbridger A, Gibson J, MacAskill E, ‘Edward Snowden: NSA reform in the US is only the beginning’ The Guardian (London, 22 May 2015) <http://www.theguardian.com/usnews/2015/may/22/edward-snowden-nsa-reform> accessed 11 March 2016. Sparrow A, ‘May wrong to say surveillance bill creates judicial authorisation for interception, says Liberty – live’ The Guardian (London, 4 November 2015) <http://www.theguardian.com/politics/blog/live/2015/nov/04/surveillance-internetsnoopers-charter-may-plans-politics-live?page=with:block563a2f5fe4b08eefa4b96e03#block-563a2f5fe4b08eefa4b96e03> accessed 11 March 2016. Stone J, ‘David Cameron Claims Jeremy Corbyn is a “threat to national security”’ Independent (London, 13 September 2015). <http://www.independent.co.uk/news/uk/politics/david-cameron-claims-jeremy-corbynis-a-threat-to-national-security-10498651.html> accessed 11 March 2016. Stone J, ‘The Tory plan to scrap the Human Rights Act just moved one step closer’ Independent (London, 8 September 2015) <http://www.independent.co.uk/news/uk/politics/the-tory-plan-to-scrap-the-humanrights-act-just-moved-one-step-closer-10491173.html> accessed 11/03/2016. Surveillance Studies Network, A Report on the Surveillance Society [online] (Surveillance Studies Network 2006) 1 <https://ico.org.uk/media/about-theico/documents/1042390/surveillance-society-full-report-2006.pdf> accessed 11 March 2016. TNS-BMRB Polling, ‘TNS Public Opinion Monitor Questionnaire and Data Tables’ (TNS-BMRB 2014) 13 <http://www.tns-bmrb.co.uk/sites/tns-bmrb/files/pom-data-tables03-feb-2014_1391424451.pdf> accessed 11 March 2016. Warren S and Brandeis L, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193. Other Sources Consulted Feldman D, Civil Liberties and Human Rights in England and Wales (2nd edn, OUP 2002). Home Office, ‘Interception of Communications: Code of Practice’ [online] (TSO (2016) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/496064/5 3659_CoP_Communications_Accessible.pdf> accessed 11 March 2016. House of Commons – Home Affairs Select Committee, ‘Fifth Report of Session 2007-08 – A Surveillance Society?’ (TSO 2008) <http://www.publications.parliament.uk/pa/cm200708/cmselect/cmhaff/58/58i.pdf> accessed 11 March 2016. House of Lords – Select Committee on the Constitution, ‘Second Report of Session 200809 – Surveillance: Citizens and the State’ (HMSO 2009) <http://www.publications.parliament.uk/pa/ld200809/ldselect/ldconst/18/18.pdf> accessed 11 March 2016.

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Interception of Communications Commissioner’s Office, ‘Half-Yearly Report of the Interception of Communications Commissioner’ [online] (HMSO 2015) <http://www.iocco-uk.info/docs/2015%20Halfyearly%20report%20(web%20version).pdf> accessed 11 March 2016. Lazarus L and Goss R, ‘Criminal Justice under the United Kingdom Human Rights Act’ (2013) 25 Singapore Academy of Law Journal 755. Loveland I, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (6th edn, OUP 2012). Office of Surveillance Commissioners, ‘Annual Report of the Chief Surveillance Commissioner for 2014-2015’ (HMSO 2015) <https://osc.independent.gov.uk/wpcontent/uploads/2015/06/OSC-Annual-Report-2014-15-web-accessible-version.pdf> accessed 11 March 2016. Raab C and Goold B, ‘Equality and Human Rights Commission Research Report 69 – Protecting Information Privacy’ (2011) <http://www.equalityhumanrights.com/sites/default/files/documents/research/rr69.pdf> accessed 11 March 2016. Reid A and Ryder N, ‘For Whose Eyes? A Critique of the UK’s Regulation of Investigatory Powers Act 2000’, (2001) 10 Information and Communications Technology Law 179. Whitty N, and Murphy T and Livingstone S, Civil Liberties Law: The Human Rights Act Era (OUP 2001).

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SHOULD THERE BE A HUMAN RIGHT TO CIVIL DISOBEDIENCE? Matt Bignell Civil disobedience is defined as a conscientious and communicative breach of law for the purpose of demonstrating protest against a law and persuading law-makers to change the law. The theoretical and practical development of civil disobedience has been circumscribed as a result of its absence from human rights discourses. This essay attempts to establish that civil disobedience can, and should, be accorded the status of a human right. It argues that civil disobedience and human rights share a unique conceptual compatibility that transcends conventional legal parameters, allowing the 'problem of the paradox' - i.e. that a legal right to disobey the law cannot exist because it is self-contradictory - to be resolved. Further, it submits that civil disobedience ought to be accepted as a human right in the interests of preserving justice, protecting democracy and expressing autonomy. It acknowledges that the human right to civil disobedience must be qualified, and offers suggestions as to how the right might be limited. Finally, it describes how the human right to civil disobedience could function within modern common law jurisdictions. Keywords: Civil disobedience, human rights, British citizenship, statelessness, public law 1. INTRODUCTION Freedom of conscience is ostensibly "prized in liberal democracies as an acknowledgement of respect for the autonomy and dignity of the individual".1 One may well find it surprising, therefore, that the protections offered under the European Convention on Human Rights2 regarding freedom of conscience are relatively sparse and under-developed. In fact, there is no opportunity for actualising thought or conscience under Article 9,3 leaving this prospect confined largely to "an individual's heart and mind".4 This essay will not focus on the general plight of freedom of conscience under the incumbent human rights regime however, but will address the narrower issue of a potential human right to civil disobedience. The theoretical and practical development of civil disobedience has been inherently circumscribed as a consequence of its absence from human rights discourses, restricting the concept to a perennially enigmatic existence. Even apportioning a definition may be considered ill-advised as it implies clear parameters to the scope of civil disobedience.5 In fact, the delineation of such boundaries is enormously difficult given its broad range of diverse idiosyncrasies,6 arising partially from its institutional neglect but also from the inescapable subjectivity underpinning the multifarious forms of motivation for civilly disobedient acts. A methodological 'paradigm case' approach, 1

Trevor Allan, ‘Citizenship and Obligation: Civil Disobedience and Civil Dissent’ (1996) 55 Cambridge Law Journal 89, 119. 2 European Convention on Human Rights, art 9. 3 Malcom Evans, Religious Liberty and International Law in Europe (CUP 1997) 285. 4 Donna Gomien, Short Guide to the European Convention on Human Rights (Council of Europe Press 1991) 69. 5 Kimberley Brownlee, ‘Features of a Paradigm Case of Civil Disobedience’ (2004) 10 Res Publica 337, 339. 6 Edward Madden & Peter Hare, ‘Reflections on Civil Disobedience’ (1970) 4 Journal of Value Inquiry 81, 81.

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specifying only those elements which are fundamentally characteristic of civil disobedience, therefore provides a more stable basis from which this essay can proceed. In this vein, an archetypal case of civil disobedience may be comprised of "conscientious and communicative breaches of law for the purpose of demonstrating protest against a law and persuading law-makers to change the law".7 Having identified the foundational components of civil disobedience, it becomes possible to ascertain the rudimentary content of a potential human right to such activity. One must take great care in utilising the term 'right' however. An elucidation of the precise nature of a right is necessary in order to facilitate an understanding of how it functions. The right envisaged for the purposes of this essay is a right "in that very limited sense according to which it is the correlative of a duty".8 In Hohfeldian terms then, a 'claim-right' to breach the law in the interests of legal reform, on the basis that there is a correlative duty that others should not interfere with such actions, is proposed. For the sake of clarity, it should be established that there is no component 'privilege' here. There is therefore no negation of the legal duty to obey the law, the correlative being that there is no legal right to disobey the law. Thus, prima facie we are presented with a paradox. This essay endeavours to show that this paradox can be resolved, and that the resultant right should be embraced in the contemporary epoch. Before undertaking this challenge however, clarity also dictates that a brief explanation must be offered as to what distinguishes a human right from its legal, moral and political counterparts. Conventionally, rights are classified in conformity with the system within which they subsist, and are justified accordingly. For example, a legal right is a claim a legal system recognises.9 One can point to statute (or custom) as the mechanism by which this right has been created. In comparison, human rights are exceptional in numerous senses. To begin with, they are possessed by all humans simply by virtue of their common humanity10 and so are not subject to the same contingencies present in other rights systems. Furthermore, whilst they are traditionally characterised as "moral rights of the highest order",11 their justification lies outside the realms of a single system. They are grounded in a "plurality of values"12 which subsume moral and prudential considerations pertaining to elementary principles such as dignity, liberty, welfare and equality.13 This extraordinary, open-ended character lends itself to expressing civil disobedience in the form of a right particularly well, as will be elaborated upon under the heading below.

Brownlee (n 5) 338. Wesley Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale Law Journal 710, 717. 9 Dwight Newman, Community and Collective Rights: A Theoretical Framework for Rights Held by Groups (Hart Publishing 2011) 11. 10 Rowan Cruft, Matthew Liao & Massimo Renzo (eds), Philosophical Foundations of Human Rights (OUP 2015) 4. 11 Jack Donnelly, Universal Human Rights In Theory and Practice (3rd edn, Cornell University Press 2013) 11. 12 John Tasioulas, ‘Towards a Philosophy of Human Rights’ (2012) 65 Current Legal Problems 1, 26. 13 ibid 50. 8

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2. COMPATIBILITY Perhaps the most persuasive rationale underlying an account of the basic compatibility between civil disobedience and the sphere of human rights on a conceptual level can be formulated in terms of the exceptional constitution of both entities. The atypical "amorphousness"14 of human rights means that they are capable of encapsulating the anomalous nature of civil disobedience in unrivalled fashion. A semblance of the peculiar nature of the latter can be recognised as implicit in Rawls's description of "disobedience to law within the limits of fidelity to law".15 To go one step farther, it is argued that civil disobedience is properly characterised as neither wholly legal, nor wholly illegal.16 This requires illustration. Whilst a disobedient act breaches a particular law, the legitimacy of the overarching legal system is accepted and a proposal for reform of the law at issue is put forth which is allegedly more consistent with the recognised rights of citizens.17 Claims therefore proceed on the premise that "the regime and the electorate that supports it are capable of recognising and acting on"18 arguments to generate reform within the boundaries of legality. To condense this analysis into mathematical form, the legitimacy to illegitimacy ratio of civilly disobedient acts is 1:1.19 Henceforth, it would be unfair to compartmentalise such actions within the conventional binary of legality and illegality. A more exacting evaluation would identify civil disobedience as belonging to the sphere of the "para-legal"20. The distinction between particular law and law at issue is stressed above as it highlights that in relation to both direct disobedience,21 where the law at issue is the law being breached, and its indirect counterpart,22 where a law is breached in order to highlight the law at issue, there is the same broad acceptance of the legal system and promulgation of the object of reform within legal boundaries. Therefore, the paralegal analysis is apposite to both forms of disobedience. This unorthodox character requires a rights framework capable of operating across a correspondingly alternative spectrum. Human rights can be conceived of as the ideal solution to this problem through their ability to "transgress the narrow boundaries of law"23 by dint of their open-ended pluralism. Since these rights are able to exist both inside and outside the law in conceptual terms, they are capable of accounting for the unusual para-legal disposition of civil disobedience in a manner which other rights-systems cannot match. The unique nature of human rights also means that they are perfectly suited to expressing the sui generis claims of the civil disobedient, as it helps to provide a solution to the problem of the paradox outlined in the Introduction. Locating the jural correlative pertaining to the proposed claim-right to civil disobedience in the sphere 14

Connor Gearty, ‘Afterword’ in Pamela Slotte & Miia Halme-Tuomisaari (eds), Revisiting the Origin of Human Rights (CUP 2015) 387. 15 John Rawls, A Theory of Justice (OUP 1973) 366. 16 Maria Tella, ‘Civil Disobedience and Test Cases’ (2004) 17 Ratio Juris 315, 318. 17 Peter Jones, ‘Introduction: Law and Disobedience’ (2004) 10 Res Publica 319, 329. 18 Andrew Sabl, ‘Looking Forward to Justice: Rawlsian Civil Disobedience and its Non-Rawlsian Lessons’ (2001) 9 Journal of Political Philosophy 307, 308. 19 #Tella (n 16) 319.# 20 Mark MacGuigan, ‘Democracy and Civil Disobedience’ (1971) 49 Canadian Bar Review 222, 258. 21 Carl Cohen, ‘Civil Disobedience and the Law’ (1966) 21 Rutgers Law Review 1, 4. 22 ibid. 23 Slotte (n 14) 20.

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of human rights means no conflict is necessary with the other correlative pair relating to the legal duty to obey the law. The para-legal nature of civil disobedience places it outside of conventional legal parameters, and human rights provide a mechanism by which civil disobedience can manifest itself within the legal system through their ability to ground "higher, supra-legal claims"24 which, whilst often seeking to strengthen or reform existing legal entitlements, are not fundamentally legalistic in themselves. A "self-contradictory"25 legal right to disobey the law is therefore avoided on both counts. Simultaneously, defining the right to civil disobedience as a human right means that cogent arguments can be put forth insisting the state may not justifiably punish the citizen who exercises this right. If the right was identified as merely moral or political, such arguments would hold far less weight within the legal system. Human rights are able to reach above and beyond ordinary normative relations,26 in doing so drawing upon and affecting the composition and legitimacy of legal, political and moral systems in a diverse array of ways.27 Consequently, such rights provide considerable potential for civil disobedience moving forward as a doctrine.28 3. JUSTIFICATION The "value pluralism"29 of human rights dictates that civil disobedience requires heterogeneous moral and prudential justification in order to qualify as a legitimate human right. Justifications must encapsulate the interests of both the individual, as human rights cannot exist without a conception of such interests,30 but also the collective, as a right to civil disobedience would run to the core of societal reform. A tripartite approach to justification is therefore employed, encompassing the foundational principles of justice, democracy and autonomy. If law and justice can be collectively conceived of as a body, rules must provide "the skeleton upon which the flesh of social justice hangs".31 A skeleton bereft of flesh falls short of a (properly) functioning entity. If the only tolerated practice was to act in accordance with a law when it was doubtful whether it secured justice, society would be stripped (to a large extent) of its capacities for registering dissent and demanding reform. Subsequently, as time passed the law we obey would become less fair and just, and our liberty would be curtailed.32 We would be left with little more than a carcass of legalistic formalism. Civil disobedience, as an appeal to society's sense of justice33 rooted in a sincere conscientious conviction that the legal order has deviated from rudimentary standards of fairness and equality, must be recognised as a precious counterweight to inequity 24

Donnelly (n 11) 13. #Michael Bayles, ‘The Justifiability of Civil Disobedience’ (1970) 24 The Review of Metaphysics 3, 7. 26 Frederic Megret, ‘Nature of Obligations’ in D Moeckli, S Shah & S Sivakumaran (eds), International Human Rights Law (2nd edn, OUP 2014) 99. 27 Tasioulas (n 12) 2. 28 Jones (n 17) 329. 29 Tasioulas (n 10) 50. 30 Guglielmo Verdirame, ‘Human Rights in Political and Legal Theory’ in S Sheeran & N Rodley (eds), Routledge Handbook of International Human Rights Law (Routledge 2013) 42. 31 Carl Cohen, Civil Disobedience: Conscience, Tactics and the Law (Columbia University Press 1971) 214. 32 Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1977) 212. 33 Rawls (n 15) 352. 25

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capable of restoring equilibrium and coherence within the law. Its contributions to the corpus should not be overlooked, much less undermined by the very entity it helps to sustain. Rather than being trampled underfoot by legislative and judicial institutions, or even merely tolerated on occasion, civil disobedience must be nurtured dialogically to facilitate the rapprochement of opposing parties34 and above all, the procurement of just outcomes. All things considered, it would be remiss to portray civil disobedience as anything other than essential to the protection and expression of individual and collective interests. In simple terms, if the law is not just, such interests are endangered. Consequently, we need civil disobedience not as a temporary or extraordinary measure,35 but as a permanent bulwark protecting against legally constructed injustice. A human right would ensure the longevity and security of civil disobedience as a means of preserving and ameliorating prospects for justice, guarding against specious punitive responses which threaten to destabilise social progression, and ultimately securing pioneering legal reform through the augmentation of values of fairness and equality. In practice, contemporary democratic structures are not a panacea for problems of political participation within society. Indeed, severe inequalities in power, influence, wealth and opportunity frequently compromise the democratic ideal,36 with hegemonic discourses and established orthodoxies operating to quell the circulation of informed contributions and rational critiques within the "public sphere"37. Consequently, productive dialogue can be stymied as "deliberative inertia"38 asserts itself upon the political order, whereby currents of information are redirected toward specific outcomes rather than qualitative procedural improvements, incurring significant democratic deficits.39 Under these conditions, orthodox methods of protest often prove insufficient,40 as often it is difficult to raise awareness of pivotal facts through such activity.41 Essentially, the support of dissentient actions, mass protests and unremitting campaigning is necessary in order to revitalise societal engagement with dialectical processes. 42 As such, civil disobedience possesses an authentic claim to upholding the ideal of democracy through its contribution to the public sphere as an expression of "deliberative contestation".43 It facilitates transparent and sincere debate as to law and policy through stimulating awareness and opening avenues of argumentation in relation to important social issues. In doing so, it serves to underwrite individual interests within democracy through its amplification of disenfranchised voices,

Kimberley Brownlee, ‘The Communicative Aspects of Civil Disobedience and Lawful Punishment’ (2007) 1 Criminal Law and Philosophy 179, 182. 35 Sabl (n 18) 327. 36 Jones (n 17) 327. 37 Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Massachusetts Institute of Technology Press 1991) 2. 38 William Smith, ‘Civil Disobedience and the Public Sphere’ (2011) 19 Journal of Political Philosophy 145, 153. 39 Daniel Markovits, ‘Democratic Disobedience’ (2005) 114 Yale Law Journal 1897, 1928. 40 Bertrand Russell, ‘Civil Disobedience and the Threat of Nuclear Warfare’ in Clara Uruqhart (ed), A Matter of Life (Cape 1963) 157.# 41 #Brownlee (n 34) 181.# 42 Jürgen Habermas, Between Facts and Norms (Massachusetts Institute of Technology Press 1996) 381. 43 William Smith, 'Democracy, Deliberation and Disobedience' (2004) 10 Res Publica 353, 355.

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ameliorating "citizens' authorship of collective decisions"44 and concomitantly enhancing the functionality of democracy as a whole. This phenomenon is increasingly taking root in modern society. Rapid technological progression and the ensuing proliferation in global connectivity has ushered in an "age of information"45 which has given rise to a deluge of political activism across the world.46 The paradigmatic significance of civil disobedience within the Occupy movement,47 in propagating a direct and accessible critique of the dearth of political representation for the disenfranchised48 with genuine universal appeal (present in over 1000 cities and localities49 at its height), illustrates just how central it has become to contemporary forms of dissent. Likewise, the burgeoning Black Lives Matter campaign50 is testament to the modernised role of civil disobedience in the pursuit of racial equality. It has even begun to form an intrinsic part of environmental politics,51 with thousands marching in defiance of a protest ban at the Paris Climate Conference.52 The point is that civil disobedience is "here to stay",53 and in fact is an increasingly pivotal means by which political views are expressed within modern democracies on vital societal issues. As such, its participants deserve the fundamental protections which human rights offer. Ultimately, the proposed right to civil disobedience would serve the crucial purpose of protecting democracy in its "place of inner integrity: the conscience of man"54. Indeed if democratic institutions are to outlast the barrage of change in the contemporary epoch, such a right is positively necessary. Autonomy requires that an agent must play a significant role in determining the content of her own behaviour.55 Accordingly, the action of a disobedient upon her "deeply held conviction"56 represents a quintessential expression of autonomous choice. Not only is it frequently acknowledged that an agent's exercise of choice or will has "non-instrumental value"57 to a certain degree, but the protection and promotion of such choice has come to be seen as so pivotal that in some quarters it is 44

Markovits (n 39) 1952. Alessandro Acquisti, Laura Brandimarte & George Loewenstein, ‘Privacy and Human Behaviour in the Age of Information’ (2015) 347 Science 509, 509. 46 Alessandro Giorgi, ‘Rebellious Politics and the Social Control of Civil Disobedience’ (2010) 14 Theoretical Criminology 523, 523. 47 #The Occupy movement is an international socio-political protest borne out of frustration with modern democratic structures and socio-economic inequalities. 48 Sonia Katyal, ‘Between Semiotic Democracy and Disobedience: Two Views of Branding, Culture and Intellectual Property’ (2012) 4 The WIPO Journal 50, 52. 49 ibid, 58. 50 Julia Wong, ‘Black Lives Matter Protestors Block San Francisco's Bay Bridge’ The Guardian (San Francisco, 19 January 2016). < http://www.theguardian.com/us-news/2016/jan/19/black-lives-matter-protesters-block-sanfranciscos-bay-bridge> 51 Mathew Humphrey, ‘Democratic Legitimacy, Public Justification and Environmental Direct Action’ (2006) 54 Political Studies 310, 310. 52 Martin Lukacs, ‘Claim No Easy Victories. Paris Was a Failure, But a Climate Justice Movement is Rising’ The Guardian (London, 15 December 2015). <www.theguardian.com/environment/true-north/2015/dec/15/claim-no-easy-victories-paris-was-afailure-but-a-climate-justice-movement-is-rising> 53 Hannah Arendt, Crises of the Republic: Lying in Politics, Civil Disobedience, On Violence, Thoughts on Politics and Revolution (Harcourt Brace Jovanovich 1972) 82. 54 Ralph Templin, Democracy and Non-Violence: The Role of the Individual in World Crisis (Porter Sargent 1965) 176. 55 Thomas May, ‘The Concept of Autonomy’ (1994) 31 American Philosophical Quarterly 133, 141. 56 Brownlee (n 34) 182. 57 David Leftkowitz, ‘On a Moral Right To Civil Disobedience’ (2007) 117 Ethics 202, 226. 45

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argued that it forms the central undertaking of liberal societies and states.58 Civil disobedience must therefore be interpreted as an act which is not only intrinsically valuable, but also worthy of active institutional protection. Moreover, we conceive of ourselves as rational agents capable of autonomous choice, indeed "there is no aspect of our identities as widely shared and deeply embedded in who we are".59 It is no coincidence that the concept of autonomy has become almost synonymous with human dignity60 and a core value in systems which claim to take respect for persons seriously.61 Civil disobedience as autonomous choice therefore represents an intimation of our basic conception of what it means to be human, and so should be protected accordingly. Briefly, it should also be noted that autonomy also has a role, in conjunction with civil disobedience, in fortifying the rule of law, which will be elaborated upon in the following Chapter. As an inherently valuable practical manifestation of our very nature, a servant of justice and increasingly, an institutional imperative, it is evident that civil disobedience is not simply eligible for, but imminently and directly requires, some form of human rights protection. 4. OBJECTIONS AND A QUALIFIED HUMAN RIGHT This Chapter will address some of the objections to a human right to civil disobedience. In the light of such critiques, the task of drawing the boundaries for the qualified human right to civil disobedience which this essay ultimately advocates will be undertaken. It may be feared that a human right to civil disobedience would erode the rule of law, bringing society dangerously close to a Hobbesian state of nature characterised by "war of every man against every man".62 On the contrary, it is submitted that the right would entail quite the opposite. It is true that disobedience must be confined within certain parameters in order to maintain social order in line with the "common good"63, as society cannot survive if it tolerates all disobedience.64 This, however, is not to say that civilisation would collapse if civilly disobedient acts were acknowledged as legitimate in some cases. There is no hard evidence65 suggesting a limited right to civil disobedience would increase general disobedience, or crime as a whole. In fact, the law is regularly breached without punishment, from minor traffic infractions to the excesses of corporate crime, absent of anything approaching the justifications associated with civil disobedience, yet the legal system remains intact.66 Furthermore, if consent is taken as the basis for the rule of law, civil disobedience can

Oliver Sensen (ed), Kant on Moral Autonomy (CUP 2012), 170. Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bonded World (CUP 2010) 340-341. 60 May (n 55) 133. 61 Roger Crisp, The Oxford Handbook on the History of Ethics (OUP 2013) 450. 62 Edwin Curley (ed), Hobbes: Leviathan with Selected Variants from the Latin Edition of 1688 (originally published 1651, Hackett 1994) part I, ch XIII, para 8. 63 David Dyzenhaus, ‘The Legitimacy of Legality’ (1996) 46 University of Toronto Law Journal 129, 162. 64 Dworkin (n 32) 206. 65 ibid 195. 66 David Spitz, ‘Democracy and the Problem of Civil Disobedience’ (1954) 48 American Political Science Review 386, 399. 59

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be thought of as a necessary counterpart to it,67 and therefore as integral to the rule of law itself. A qualified human right to civil disobedience would open a window for autonomous action in line with one's conscience, strengthening the force of legal obligation through its fortification of collective consent in relation to the remaining bulk of laws.68 Henceforth, a human right to civil disobedience would represent a reinforcement of the general validity of law. It may also be argued that the right would be detrimental to the symbolic significance of civil disobedience, as it would preclude punishment where applicable. In fact, by providing an opportunity for the public airing of the rationale behind acts of civil disobedience, the right would engender public awareness and support,69 and perhaps even "notoriety"70 for the cause, surpassing any perceived symbolism generated by acquiescence to punishment. Moreover, the detrimental consequences of punishment far outweigh any latent symbolism it may generate. Firstly, it exhibits systemic "moral blindness"71 in failing to distinguish the conscientious disobedient from the common criminal,72 ultimately undermining the censure of truly criminal acts. Secondly, it means appeals to justice are far less likely to receive popular support as in most cases, "it is well nigh impossible to persuade others to take the risks of public ridicule and imprisonment",73 unless the injustice is truly egregious. There is also concern that conscientious yet morally repugnant acts may receive undue protection under the right. Admittedly, this is a source of genuine consternation. However, it is submitted that a reasonably constrained human right would minimise the likelihood of such a situation occurring. Accordingly, the following five conditions must be met to engage the human right. At the outset, the law at issue must incur a clear and substantial violation74 of core moral or prudential principles. The response must be conscientious, in that it must arise from an individual's authentic and sincere conviction that what she is doing is uniquely correct.75 Mere conscientiousness is insufficient to ground legitimacy however. The rationale must also satisfy a plausibility76 threshold. Such a test might employ an objective standard of reasonableness to determine whether the disobedient's principled convictions could logically be considered feasible and desirable. Since the aims of civil disobedience are essentially dialogical, in seeking to catalyse discussion through publicising convictions with the goal of persuading others of their veracity,77 the disobedience must also be communicative.78 Specifically, it must be performed in public79 in order to effectively demonstrate both renunciation of the protested law,80 and the rationale behind the protest so as to attempt to actuate a lasting change in 67

Allan (n 1) 90. Dworkin (n 32) 196. 69 John Cohan, ‘Civil Disobedience and the Necessity Defence’ (2007) 6 Pierce Law Review 111, 119. 70 Ibid, 112. 71 Dworkin (n 32) 216. 72 Candice Delmas, ‘False Convictions and True Conscience’ (2015) 35 Oxford Journal of Legal Studies 403, 404. 73 Madden (n 6) 87. 74 Smith (n 43) 374. 75 Joel Feinberg, Freedom and Fulfilment: Philosophical Essays (Princeton University Press 1992) 157. 76 Vinit Haksar, ‘The Right to Civil Disobedience’ (2003) 41 Osgoode Hall Law Journal 407, 408. 77 Smith (n 43) 375. 78 Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience (OUP 2012) 17. 79 Rawls (n 15) 364. 80 Brownlee (n 78) 18. 68

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law.81 Finally, it is imperative that disobedience is non-violent.82 This ensures that it remains within the conceivable limits of "loyalty to law"83 and mitigates the dangers of disobedients appearing unsuitable partners for social cooperation,84 which would risk losing public and institutional support for a just cause. Overall, these stipulations are designed, at a minimum, to ensure proportionality between the desired end and the means employed to attain it.85 Whilst it is acknowledged that the posited conditions cannot guarantee an absolute preclusion of morally questionable (or even repugnant) acts receiving undue protection, it is contended that the acceptance of a minutiae of wrongdoing appears a better option than the unpalatable alternative of total compliance with authority or criminal prosecution. 5. FUNCTIONALITY AND COMPARATIVE ANALYSIS This Chapter first elaborates on how the human right to civil disobedience should function. It then provides a comparative overview of the prospects for the proposed right in three jurisdictions, the United Kingdom, the United States and France. These jurisdictions have been chosen as they happen to possess amongst the most highly developed human rights systems. Analysis of these structures is therefore most conducive to highlighting how the right might be accommodated, as pragmatically, only liberal-democratic states which hold a principled commitment to respect for individuals' basic rights86 could even aspire to give effect to such a right. At the outset, a critique of the right will be outlined in order to better illustrate how it might function. One might argue that, since human rights seek to establish parallel legal entitlements, a human right to civil disobedience would be unworkable as it would ultimately consist of a legal right to the para-legal, which represents a contradiction in terms. It is submitted that this insight can be set aside as it is based upon a non-sequitur, in that fresh legislation "is neither the only way of advancing human rights, nor necessarily the best way of doing so".87 Considerable scope for catalysing progressive development lies within the interpretation of existing law. Pertinently, it has been recognised that dynamic interpretative techniques can create space for invoking human rights88 within the legal sphere even when such rights are not "formally entrenched"89 within the legal system, as they can be considered to be rooted in the legal and political culture of rights-respecting societies.90 This allows space for judges, operating on a similar basis to that envisioned in Dworkin's conception of "law as integrity",91 to invoke the human right where appropriate in order to engage deliberatively with the arguments of disobedients and 81

ibid. Rawls (n 15) 366. 83 Joxerrarnon Bengoetxea & Ignacio Ugartemendia, ‘Civil Disobedience as Constitutional Patriotism’ (1997) 17 Legal Studies 434, 439. 84 Sabl (n 18) 330. 85 Delbert Smith, ‘The Legitimacy of Civil Disobedience as a Legal Concept’ (1968) 36 Fordham Law Review 707, 712. 86 Leftkowitz (n 57) 209. 87 Amartya Sen, ‘Rights, Laws and Language’ (2011) 31 Oxford Journal of Legal Studies 437, 443. 88 ibid, 447. 89 Trevor Allan, 'Interpretation, Injustice and Integrity' (2016) 36 Oxford Journal of Legal Studies 58, 62. 90 ibid. 91 Ronald Dworkin, Law's Empire (Harvard University Press 1986) 225. 82

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weigh the benefits and detriments of legitimating a civilly disobedient act without needing to resort to a legal right. Accordingly, the 'claim-right' at supra-legal level would take effect in the legal sphere as a form of "rider"92 to the law, which can be thought of as a resource which judges would be able to draw upon to crystallise the legitimacy of conscientious convictions. This is consistent with the notion that duties can be overridden in certain cases by a "higher cause",93 which the special character of human rights would provide. Thus, the proposed right would not detract from the general duty to obey the law, but would simply prioritise a higher right over this duty in limited circumstances. This process would facilitate constructive interpretations of "the best route to a better future"94 within the legal system. The conception of how the proposed right might function has consequences for how it may be accommodated within different jurisdictions. Most obviously, there is a clear distinction between the Anglo-American common law and the French civil law system regarding the ability of judges to engage with the claims of the disobedient in court. Under the former, far greater emphasis is afforded to the argumentation of a judicial decision95 which makes it much more conducive to airing and engaging with conscientious convictions. Indeed, within the common law system many judicial decisions already embrace social and political considerations through openly deliberating upon and integrating divergent and dissenting opinions as well as extralegal matters.96 This phenomenon can be observed in the UK, where evaluations of "the political and social life of the community"97 have been deemed central to the balancing of privacy and public interest, and the United States where such considerations were prominent in the weighing of a qualified right to terminate pregnancy against state interests in protecting health and life.98 However, the scope for constructive interpretation through judicial deliberation in the civil law system is far more restricted. The judicial style reflects a "single mouth conception of law",99 where extra-legal considerations are excluded from the reasoning process. An example of the brevity of the decisions can be found in the conviction of anti-abortion activists in 1996,100 where there was no discussion of motive or rationale behind the disobedient acts, but rather a concise statement of the relevant law. As a consequence of this limited approach, there is very little room for the kind of persuasive dialogue the proposed human right seeks to establish in the legal sphere. The civil law system, then, presents obstacles to the functioning of the right which may be very difficult to overcome. One might be tempted toward an optimistic outlook regarding the prospects for the integration of a human right to civil disobedience within common law systems, at least. In fact, this optimism would be misplaced. Within both the UK and US, public officials frequently refrain from distinguishing between ordinary criminal offending and conscientious actions such as civil disobedience.101 Oftentimes, judges go even 92

Hugo Bedau, ‘On Civil Disobedience’ (1961) 58 Journal of Philosophy 653, 655. Feinberg (n 75) 158. 94 Dworkin (n 91) 413. 95 Sophie Turenne, ‘Judicial Responses to Civil Disobedience: A Comparative Approach’ (2004) 10 Res Publica 379, 392. 96 ibid. 97 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 [149] (Hale LJ). 98 Roe v Wade 410 US 113 (1973). 99 #Turenne (n 95) 395.# 100 #Saint-Hilaire J, ‘Revue de sciences criminelles et de droit penal compare’ (Crim 31 January 1996) 670.# 101 Delmas (n 72) 403. 93

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further, characterising civil disobedience as even more opprobrious than ordinary offending102 by warning of "the evils that can attend subordinating the requirements of law to one's personal views of morality".103 Even where judges are predisposed towards the claims of the disobedient, the current legal configuration generally demands retribution. The recent trial of the Delta 5 climate activists in the US is apposite as a case in point. The judge was clearly sympathetic to the underlying cause, referring to the disobedients as "tireless advocates who we need in this society"104 and even breaking ranks in seeking to offer an historic opportunity for the activists to argue the defence of necessity for their disobedience in the courtroom.105 Ultimately, however, the judge could not direct the jury to consider the defence because it would have violated legal precedent106 as the defendants had not exhausted all legal means of protest.107 The judiciary in the United Kingdom has encountered similar predicaments, with one senior judge confessing that "we might feel that although we sympathised and even shared the same opinions, we had to give greater weight to the need to enforce the law"108. Essentially, judges currently have little option but to rule that order prevails over all else,109 often reducing laws to "dangerously structured dams"110 that obstruct the current of social progress. A human right to civil disobedience would represent an effective remedy to the overly stagnant legal structures which lie before us today, obstructing cogent calls for reform in the face of increasing socio-economic inequality, climate crisis and endemic institutional corruption. Nevertheless, it would take a radical overhaul in legal culture to begin to entertain the possibility of the proposed human right, even within the most sophisticated common law rights-systems.

102

Brownlee (n 78) 155-156. United States v Platte 401 F.3d 1176 (10th Cir 2005) [19] (Hartz J). See also United States v Cullen 454 F.2d 386 (7th Cir 1971) [41] (Stevens J). 104 Hal Bernton, ‘5 Activists Convicted of Trespass on Everett Tracks in Protest Over Oil, Coal Trains’ The Seattle Times (Seattle, 15 January 2016). <www.seattletimes.com/seattle-news/environment/5-activists-convicted-of-trespass-on-everett-tracksin-protest-over-oil-coal-trains/> 105 Tim DeChristopher, ‘Civil Disobedience Often Leads to Jail. But Now, Protestors Can Explain Themselves’, The Guardian (New York, 13 January 2016). <www.theguardian.com/commentisfree/2016/jan/13/civil-disobedience-often-leads-to-jail-but-nowprotestors-can-explain-themselves> 106 Bernton (n 104). 107 United States v Aguilar 883 F.2d 662 (9th Cir 1989). 108 Sepet and another v Secretary of State for the Home Department [2003] UKHL 15, [2003] 1 WLR 856 [34] (Hoffman LJ). 109 William Quigley, ‘The Necessity Defence in Civil Disobedience Cases: Bring in the Jury’ (2003) 38 New England Law Review 3, 54. 110 Martin Luther King, ‘Letter from a Birmingham Jail’ in Hugo Bedau (ed), Civil Disobedience in Focus (Routledge 1991) 75. 103

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6. CONCLUSION If dissent is truly "the hallmark of free government"111, then civil disobedience lies at the root of transparent, democratic and constitutional societies112 as a powerful expression of commitment to values of justice, democracy and autonomy. Acknowledging that the general duty to obey the law can be subordinated to the higher cause of a human right in limited circumstances, far from denigrating the rule of law, represents an opportunity for the law to reflect "what it is for us: for the people we want to be and the community we aim to have"113. As it is, little attention is paid to the fact that "as cultures change, yesterday's criminals can quickly become tomorrow's visionaries"114 through the conscientious pursuit of change. The stigma of criminality which the law currently attaches to civilly disobedient acts represents the true paradox underlying this essay. When Dr. King lamented that "we will have to repent in this generation... for the appalling silence of the good people",115 he recognised that large cross-sections of the populace had failed to take a stand for what was right. We must strive to avoid this fate in the modern era. Civil disobedience, as a mechanism for the amplification and proliferation of conscientious voices in the public sphere, presents a podium from which societal silences may be shattered. Human rights, in "standing outside the realms of power and holding society to account",116 offer the means for the construction of a legitimate space for such dissent. A qualified human right to civil disobedience would represent a progressive step toward a society characterised by greater fairness, liberty and equality.

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#Arendt (n 53) 88. #Bengoetxea (n 83) 447. 113 #Dworkin (n 91) 413. 114 #Jarret Lovell, Crimes of Dissent: Civil Disobedience, Criminal Justice and the Politics of Conscience (New York University Press 2009) 205. 115 King (n 110) 76. 116 Gearty (n 14) 388.# 112

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Primary Sources Cases Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457. Roe v Wade 410 US 113 (1973). Sepet and another v Secretary of State for the Home Department [2003] UKHL 15, [2003] 1 WLR 856. United States v Aguilar 883 F 2d 662 (9th Cir 1989). United States v Cullen 454 F.2d 386 (7th Cir 1971). United States v Platte 401 F.3d 1176 (10th Cir 2005). Legislation European Convention on Human Rights 1950. Secondary Sources Books, Journals and Reports Acquisti A, Brandimarte L and Loewenstein G, 'Privacy and Human Behaviour in the Age of Information' (2015) 347 Science 509. Allan T, 'Citizenship and Obligation: Civil Disobedience and Civil Dissent' (1996) 55 Cambridge Law Journal 89. -- 'Interpretation, Injustice and Integrity' (2016) 36 Oxford Journal of Legal Studies 58. Arendt H, Crises of the Republic: Lying in Politics, Civil Disobedience, On Violence, Thoughts on Politics and Revolution (Harcourt Brace Jovanovich 1972). Bedau H, 'On Civil Disobedience' (1961) 58 Journal of Philosophy 653. -- (ed), Civil Disobedience in Focus (Routledge 1991). Bengoetxea J and Ugartemendia I, 'Civil Disobedience as Constitutional Patriotism' (1997) 17 Legal Studies 434, 439. Bernton H, '5 Activists Convicted of Trespass on Everett Tracks in Protest Over Oil, Coal Trains' The Seattle Times (Seattle, 15 January 2016). <www.seattletimes.com/seattle-news/environment/5-activists-convicted-of-trespasson-everett-tracks-in-protest-over-oil-coal-trains/> Brownlee K, 'Features of a Paradigm Case of Civil Disobedience' (2004) 10 Res Publica 337.

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-- 'The Communicative Aspects of Civil Disobedience and Lawful Punishment' (2007) 1 Criminal Law and Philosophy 179. -- Conscience and Conviction: The Case for Civil Disobedience (OUP 2012). Cohan J, 'Civil Disobedience and the Necessity Defence' (2007) 6 Pierce Law Review 111. Cohen C, 'Civil Disobedience and the Law' (1966) 21 Rutgers Law Review 1. -- Civil Disobedience: Conscience, Tactics and the Law (Columbia University Press 1971). Crisp R, The Oxford Handbook on the History of Ethics (OUP 2013). Cruft R, Liao M and Renzo M, Philosophical Foundations of Human Rights (OUP 2015). Curley E (ed), Hobbes: Leviathan with Selected Variants from the Latin Edition of 1688 (Hackett 1994). DeChristopher T, 'Civil Disobedience Often Leads to Jail. But Now, Protestors Can Explain Themselves', The Guardian (New York, 13 January 2016). <www.theguardian.com/commentisfree/2016/jan/13/civil-disobedience-often-leadsto-jail-but-now-protestors-can-explain-themselves> Delmas C, 'False Convictions and True Conscience' (2015) 35 Oxford Journal of Legal Studies 403. Donnelly J, Universal Human Rights in Theory and Practice (3rd edn, Cornell University Press 2013). Dworkin R, Taking Rights Seriously (Harvard University Press 1977). Dyzenhaus D, 'The Legitimacy of Legality' (1996) 46 University of Toronto Law Journal 129. Evans M, Religious Liberty and International Law in Europe (CUP 1997). Feinberg J, Freedom and Fulfilment: Philosophical Essays (Princeton University Press 1992). Gaus G, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bonded World (CUP 2010). Giorgi A, 'Rebellious Politics and the Social Control of Civil Disobedience' (2010) 14 Theoretical Criminology 523. Gomien D, Short Guide to the European Convention on Human Rights (Council of Europe Press 1991). Habermas J, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Massachusetts Institute of Technology Press 1991).

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-- Between Facts and Norms (Massachusetts Institute of Technology Press 1996). Haksar V, 'The Right to Civil Disobedience' (2003) 41 Osgoode Hall Law Journal 407. Herstein O, 'Defending the Right to Do Wrong' (2012) 31 Law and Philosophy 343. Hohfeld W, 'Some Fundamental Legal Conceptions as Applied in Judicial Reasoning' (1913) 23 Yale Law Journal 16. Humphrey M, 'Democratic Legitimacy, Public Justification and Environmental Direct Action' (2006) 54 Political Studies 310. Jones P, 'Introduction: Law and Disobedience' (2004) 10 Res Publica 319. Katyal S, 'Between Semiotic Democracy and Disobedience: Two Views of Branding, Culture and Intellectual Property' (2012) 4 The WIPO Journal 50. Leftkowitz D, 'On a Moral Right To Civil Disobedience' (2007) 117 Ethics 202. Lovell J, Crimes of Dissent: Civil Disobedience, Criminal Justice and the Politics of Conscience (New York University Press 2009). Lukacs M, 'Claim No Easy Victories. Paris Was a Failure, But a Climate Justice Movement is Rising' The Guardian (London, 15 December 2015). <www.theguardian.com/environment/true-north/2015/dec/15/claim-no-easy-victoriesparis-was-a-failure-but-a-climate-justice-movement-is-rising> MacGuigan M, 'Democracy and Civil Disobedience' (1971) 49 Canadian Bar Review 222. Madden E and Hare P, 'Reflections on Civil Disobedience' (1970) 4 Journal of Value Inquiry 81. Markovits D, 'Democratic Disobedience' (2005) 114 Yale Law Journal 1897. May T, 'The Concept of Autonomy' (1994) 31 American Philosophical Quarterly 133. Newman D, Community and Collective Rights: A Theoretical Framework for Rights Held by Groups (Hart Publishing 2011). Quigley W, 'The Necessity Defence in Civil Disobedience Cases: Bring in the Jury' (2003) 38 New England Law Review 3. Rawls J, A Theory of Justice (OUP 1973). Raz J, 'The Authority of Law' (OUP 2009). Russell B, 'Civil Disobedience and the Threat of Nuclear Warfare' in Uruqhart C (ed), A Matter of Life (Cape 1963).

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Saint-Hilaire J, Crim 31 January 1996, Revue de sciences criminelles et de droit penal compare 1996.670. Sen A, 'Rights, Laws and Language' (2011) 31 Oxford Journal of Legal Studies 437. Sensen O (ed), Kant on Moral Autonomy (CUP) 2012. Sheeran S & Rodley N (eds), Routledge Handbook of International Human Rights Law (Routledge 2013). Slotte P and Halme-Tuomisaari M (eds), Revisiting the Origin of Human Rights (CUP 2015). Smith D, 'The Legitimacy of Civil Disobedience as a Legal Concept' (1968) 36 Fordham Law Review 707. Smith W, 'Democracy, Deliberation and Disobedience' (2004) 10 Res Publica 353. -- 'Civil Disobedience and the Public Sphere' (2011) 19 Journal of Political Philosophy 145. Spitz D, 'Democracy and the Problem of Civil Disobedience' (1954) 48 American Political Science Review 386. Tella M, 'Civil Disobedience and Test Cases' (2004) 17 Ratio Juris 315. Templin R, Democracy and Non-Violence: The Role of the Individual in World Crisis (Porter Sargent 1965). Turenne S, 'Judicial Responses to Civil Disobedience: A Comparative Approach' (2004) 10 Res Publica 379. Wong J, 'Black Lives Matter Protestors Block San Francisco's Bay Bridge' The Guardian (San Francisco, 19 January 2016). < http://www.theguardian.com/us-news/2016/jan/19/black-lives-matter-protestersblock-san-franciscos-bay-bridge> Other Sources Consulted Allan T, Constitutional Justice: A Liberal Theory of the Rule of Law (OUP 2001). Bentham J, A Fragment on Government and an Introduction to the Principles of Morals and Legislation (Basil Blackwell 1948). Cavanaugh W, The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict (OUP 2009). Chikota R and Moran M (eds), Riots in the Cities: An Analytical Symposium on the Causes and Effects (Farleigh Dickinson University Press 1970). Edmundson W, An Introduction to Rights (2nd edn, CUP 2012).

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Eligon J and Smith M, 'Emergency Declared in Ferguson After Shooting' The New York Times (New York, 10 August 2015). <http://www.nytimes.com/2015/08/11/us/shooting-ferguson-michaelbrown.html?_r=0> Feinberg J, 'In Defence of Moral Rights' (1992) 12 Oxford Journal of Legal Studies 149. Freeman H, 'The Right of Protest and Civil Disobedience' (1966) 41 Indiana Law Journal 228. Green L, 'Civil Disobedience and Academic Freedom' (2003) 41 Osgoode Hall Law Journal 381. Greenawalt K, Conflicts of Law and Morality (OUP 1987). Harris D, O' Boyle M, Bates E and Buckley C, Law of the European Convention on Human Rights (3rd edn, OUP 2014). Holpuch A, 'Black Lives Matter Protest Shuts Down Mall of America and Airport Terminal' The Guardian (New York, 23 December 2015). <www.theguardian.com/us-news/2015/dec/23/black-lives-matter-organizers-protestmall-of-america> Jones P, 'Moral Rights, Human Rights and Social Recognition' (2013) 61 Political Studies 267. Mack K, 'Civil Disobedience, State Action and Lawmaking Outside the Courts: Robert Bell's Encounter with American Law' (2014) 39 Journal of Supreme Court History 347. Neumann F, The Democratic and the Authoritarian State: Essays in Political and Legal Theory (Free Press of Glencoe 1957). Nobles R and Schiff D, 'Civil Disobedience and Constituent Power' (2015) 11 International Journal of Law in Context 462. Oshana M, 'Personal Autonomy and Society' (1998) 29 Journal of Social Philosophy 81. Parker K, 'Takin' It to the Streets: Hare and Madden on Civil Disobedience' (2010) 46 Transactions of the Charles S. Pierce Society: A Quarterly Journal in American Philosophy 35. Rawls J, The Law of Peoples (Harvard University Press 1999). Raz J, Ethics in the Public Domain (Clarendon Press 1994). Singer P, Democracy and Disobedience (OUP 1978).

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REGULATING ‘NEW WARS’ USING INTERNATIONAL HUMANITARIAN LAW: OVERCOMING THE CHALLENGES POSED BY CONFLICT CLASSIFICATION AND NON-STATE ACTORS Eleanor Bath International Humanitarian Law is designed for a style of warfare that is anachronistic. Accordingly, ‘new wars’ pose significant challenges to it. Whilst there has been progress in its enforcement, the overarching legal framework is inadequate in coping with the phenomenon of modern warfare. This paper explores two of the central legal challenges it faces; namely, the issues that arise in maintaining the distinction between international and non-international armed conflicts and the failure to cope with the proliferation of non-state actors. The paper analyses these legal issues against the realities of new wars and explores the legal developments necessary to overcome these problems. Underpinning the discussion is a recognition of the growing emphasis on the individual in modern international law, which in turn focuses the legal change towards the core humanitarian purpose of this body of law. The conclusion with regards to the first issue is that further development in custom seems likely to dissolve the legal boundary between international and non-international armed conflict. The conclusion with regards to the second issue is that active steps need to be taken in the form of a new piece of treaty law to accommodate for non-state actors. The paper offers an outline of the key aspects of this new law to overcome the problems identified, and touches upon the practical feasibility of its adoption. Keywords: IACs, NIACs, NSAs, International Humanitarian Law, New Wars, Terrorism 1. INTRODUCTION “The limitation of violence is the very essence of civilization.”1 As the body of law that regulates the conduct of hostilities in conflict, international humanitarian law (IHL) is fundamental in bringing considerations of humanity to brutal wars. However, in its current state it is a body of rules that reflects its antiquated origins – namely the European wars of the 19th and early 20th centuries. When faced with ‘new wars’, which are characterised by complex internal and international elements, diverse non-state actors and the pursuit of ideology instead of victory, it is anachronistic.2 This paper focuses on two central challenges that arise in relation to the substance of IHL rules and the ‘new war’ phenomenon, namely that of conflict classification and personal status. The two issues are united by their source as they are both consequences of the state-centric beginnings of IHL. This state-centricity upholds a strict distinction between international armed conflict (IAC) and non-international armed conflict (NIAC), applying fewer rules to the latter. It equally perpetuates a failure to deal comprehensively with the status of non-state actors (NSAs), which itself works to preserve the distinction between IAC and NIAC. After analyses of the problems, there is reflection upon necessary legal development, mapping a way for the IHL framework to effectively regulate the conduct of hostilities in modern wars. Underpinning both the critique of existing law and the suggestions for development is the motivation of civilian protection. This is not only inspired by modern rights consciousness, which !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1

François Bugnion, ‘Just wars, wars of aggression and International Humanitarian Law’ (2002) 84 International Review of the Red Cross 523, 526. 2 Mary Kaldor, News Wars and Old Wars: Organised Violence in a Global Era (Cambridge Polity Press 2007) 6.

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designates the individual as the highest unit of moral concern, but also by the fact that “in the past eighty years, civilian inviolability has been transformed from a rhetorical aside to a basic principle in many areas of international law”.3 2. NEW WARS AND IHL New wars are the name given to the type of warfare that has dominated in recent decades. Kaldor famously articulated the notion that battles between sovereign states pursuing victory and fueled by a thirst for power had been replaced by complex civil wars pursuing ideology and driven by ethnic hatred.4 The actors in such wars are often non-state groups, composed of terrorist networks spanning across state borders. The setting for such wars are usually within or across rather than between states, but with significant international involvement. IHL, by contrast, is far from ‘new’. The 1863 Lieber Code and the 1864 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field are understood to mark the beginning of its modern legal development, which culminated in the four Geneva Conventions of 1949.5 It is across these conventions that most of conventional IHL can be found. Given that IHL grew from these brutal collisions between the armies of powerful sovereign European states throughout the 19th and 20th centuries, it is unsurprising that it reflects a paradigm of war that is outdated. Bringing these themes together illustrates the bitter irony of IHL and new wars, namely that as wars become more atrocious, the laws of war seem increasingly unsuitable for purpose. The targeting of civilians, the ideology of ethnic cleansing and the use of rape as a weapon are consistent features of many modern conflicts. A recent UN Report described the violence experienced by civilians in Iraq in 2015 as “staggering”.6 Fundamentally, it appears that victory is no longer the paramount concern of warring sides: “in places like Bosnia, Somalia, Liberia, and Rwanda, the armed forces never seemed to fight one another, instead, what passed for ‘military action’ was the more or less systematic murder and terrorizing of civilian populations”.7 Meanwhile, the very body of law that is meant to regulate such violence struggles to cope, leaving civilians subject to wars seemingly unconstrained by law. There is one area, however, where significant development has occurred. Whilst IHL has long imposed legal obligations on warring parties, recent decades have seen the beginnings of enforcement of these rules, with individuals being held to account for the first time. The idea that perpetrators of atrocities in conflicts could be brought to justice was first seen in the Nuremberg and Tokyo trials after WWII. This ad-hoc model of enforcement continued throughout the 20th century, gathering speeds at the turn of the century with the International Criminal Tribunal for Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone. Eventually, concerns about impunity in “the age of genocide”,8 along with criticism of selective justice prompted the creation of the International Criminal Court (ICC) through the Rome Statute of 1998. Lamp argues that this shows IHL to be moving towards a “new paradigm of compliance… that shifts emphasis from voluntary !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3

Anne-Marie Slaughter and William Burke-White, ‘An International Constitutional Moment’ (2002) 43 Harvard International Law Journal 1, 21. 4 Kaldor (n 2). 5 Christopher Greenwood, ‘Historical Development and Legal Basis’ in Dieter Fleck (ed), The Handbook of Humanitarian Law in Armed Conflicts (OUP 1995) 116-117. 6 United Nations Assistance Mission for Iraq and Office of the United Nations High Commissioner for Human Rights, ‘Report on the Protection of Civilians in the Armed Conflict in Iraq: 1 May – 31 October 2015’ (2015). <http://www.ohchr.org/Documents/Countries/IQ/UNAMIReport1May31October2015.pdf> [accessed 1 March 2016]. 7 Donald Snow, Uncivil Wars: International Security and the New Internal Conflicts (Lynne Rienner 1996) ix. 8 Samantha Power, A Problem from Hell: America and the Age of Genocide (Basic Books 2002) 640.

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compliance to external enforcement”.9 He goes on to explain that external enforcement was impossible in the age of battles between superpowers, the only option had been to rely on a paradigm of voluntary compliance. In new wars, he argues, external enforcement is more suitable as the actors are often “militarily weak… not socially cohesive and hence manipulable”.10 Undoubtedly the ICC marks a significant step forward in making IHL useful in the modern day. It is at the heart of the individualisation of international law and marks a significant opportunity to humanise armed conflict. However, its capacity to truly protect civilians should not be overstated because the idea that it significantly deters violations of IHL is questionable. The role of thwarted individual morality in the crimes of new wars should not be underestimated; the perpetrators often truly believe in the sanctity of what they are doing. In discussing perpetrators’ moral choices, Rothe and Collins note that the crimes are “believed to be legitimate, just, or as the only means to defend or advance their interests… making the crimes necessary, if they are even viewed as ‘crimes’”.11 Equally, a rational cost-benefit analysis by perpetrators would have to see accountability as likely. With a record of four defendants convicted over the fourteen years since 2003 when the court began operating, the ICC is not yet proving to make perpetrators seriously fear that they will be held to account. In support of this is the fact that atrocities have continued in many conflicts well after the ICC became involved.12 Arguably, the ICC is better understood as a component of the difficult journey to peace and reconciliation after conflict as opposed to a serious tool to regulate the actual conduct of warfare. As Bassiouni states: “I am convinced that there can truly be no peace without justice; and, certainty, there can be no justice without the truth”.13 The ICC, to Bassiouni, is a tool to establish the truth and fulfil the basic human desire for justice after the occurrence of atrocities. Whilst enforcement of IHL is a positive step, it is essentially restorative rather than preventative, and relying on it to induce compliance is illusory. Protecting civilians requires alteration of its substance, which is the focus of the following discussion. 3. CONFLICT CLASSIFICATION A. The Legal Dichotomy One of the central dichotomies of IHL is that between IAC (“all cases of… armed conflict which may arise between two or more of the High Contracting Parties”)14 and NIAC (“armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties”).15 State sovereignty is a central tenet of international law and demands that states enjoy non-interference with their internal affairs. Accordingly, IHL initially developed to regulate IAC only. The 1949 Geneva Conventions extended some rules to NIAC,16 but they remain severely limited in comparison to the rules that cover international !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9

Nicholas Lamp, ‘Conceptions of War and Paradigms of Compliance: The “New War” Challenge to International Humanitarian Law’ (2011) 16 Journal of Conflict and Security Law 225, 225. 10 Lamp (n 9) 252. 11 Dawn Rothe and Victoria Collins, ‘The International Criminal Court: A Pipe Dream to End Impunity’ (2013) 13 International Criminal Law Review 191, 196. 12 Lamp (n 9) 253 13 Mahmoud Cherif Bassiouni, ‘Justice and Peace: The Importance of Choosing Accountability over Realpolitik’ (2003) 35 Case Western Reserve Journal of International Law 191, 204. 14 Geneva Conventions 1949, Common Article II. 15 Geneva Conventions 1949, Common Article III. 16 Jed Odermatt, ‘Between Law and Reality: “New Wars” and Internationalised Armed Conflict’ (2014) 5 Amsterdam Law Forum 19, 20.

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conflicts. Upon surveying the NIAC provisions, Stewart concludes that they do “little to regulate combat or protect civilians against the effects of hostilities”.17 The legal protections available in NIAC are set out in Common Article III (CA III) of the 1949 Geneva Conventions. It is a single provision, with two subparagraphs and 271 words. CA III offers certain core protections, like the requirement that all those captured by the enemy must be treated humanely and that the wounded must be collected and cared for. It also prohibits crimes like murder and torture. In the 1970s, Additional Protocol II (AP II) set out further provisions to regulate NIAC. Whilst the ICRC saw this as an opportunity to extend the legal protection in NIAC and put forward 47 proposed articles, the final version contained only 28. The rules around the methods and means of combat were deleted and the substance is thin in places, for example Article 13(2) AP II prohibits attacks on civilians in NIAC, but there is none of the detail going beyond this (as there is in an IAC),18 like prohibiting indiscriminate attacks. AP II also has a narrower scope of applicability than CA III. It only applies to a NIAC between armed forces and “dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.19 These are high threshold requirements which severely limit the circumstances in which AP II will apply. In stark contrast to this clearly deficient legal coverage of NIAC, IACs enjoy the protection of 531 Articles across the 1949 Geneva Conventions and Additional Protocol I (AP I). B. Problems with the Legal Dichotomy The most obvious problem with the dichotomy is that NIACs are the most prevalent, and often deadly, forms of conflict. Yet, following the provisions, they are largely untouched by convention law. A study that looked at armed conflict from 1945 to 1996 found that, of 285 conflicts, 220 during the period were “non-international, internal, and tyrannical regime” type conflicts, which produce roughly 87 million deaths compared to the 11 million from IAC. 20 In addition to prevalence, the style of warfare involved in NIAC increases the risk to civilians. For example, governments target the population, suspecting that the NSAs are amongst them, like the alleged chemical attacks by the Assad regime against oppositioncontrolled parts of Damascus in 2013.21 Meanwhile, NSAs overcome their weaker position through employing methods of warfare that disregard civilian protection.22 The dichotomy amounts to, as the Norwegians put it, “selective humanitarianism”,23 which is morally unacceptable in a world where all individuals are understood to possess enduring and inviolable human rights. It is another example of the incompatibility between !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 17

James Stewart, ‘Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict’ (2003) 85 International Review of the Red Cross 313, 320. 18 Additional Protocol I to the Geneva Conventions, Article 51(4). 19 Additional Protocol II to the Geneva Conventions, Article 1(1). 20 Jennifer Balint, ‘Conflict, Conflict Victimization and Legal Redress: 1945 – 1996’ (1996) 56 Law and Contemporary Problems 231, 235. 21 United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic: Report on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013. <http://www.un.org/disarmament/content/slideshow/Secretary_General_Report_of_CW_Investigation.pdf> accessed 1 March 2016. 22 Mahmoud Cherif Bassiouni, ‘The New Wars and The Crisis of Compliance with the Law of Armed Conflict by Non-State Actors’ (2008) 98 Journal of Criminal Law & Criminology 711, 715. 23 ‘Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva 1974–1977’ (1978), CDDH/I/SR 23, vol VIII, 215.

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state sovereignty, which is at the heart of the enduring dichotomy between IAC and NIAC, and morality in an age of universal rights. In the latter half of the 20th century, “states… definitively lost their supreme dignity as embodiments of the highest moral values of human communities”,24 and a continuation of this logic means that the difference in legal protection for those involved in NIAC as opposed to IAC cannot be sustained. This moral unacceptability is reflected in dicta of the International Criminal Tribunal for the former Yugoslavia (ICTY), where it was famously asked: Why protect civilians from belligerent violence… when two sovereign states are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ within the territory of a single state?25 Some may argue that the dichotomy is even at odds with IHL as it was first conceived in the 19th century, since the famous Martens Clause in the 1899 Hague Convention refers to the “principles of humanity” and the “dictates of the public conscience”.26 However, it is more accurate to understand that the moral difficulties with the dichotomy are very much a result of modern moral phenomena. The dichotomy is also difficult to practically sustain when one considers the nature of modern warfare. Kaldor explains that although most of the wars she encountered “were localized, they involve a myriad of transnational connections, so that the distinction between internal and external… or even between local and global, are difficult to sustain”.27 Sovereign states rarely enter into direct military conflict any more, partly due to the prevalence of nuclear weapons.28 War consists instead of internal conflicts complicated by international elements. In the Cold War, proxy wars became prevalent, like that in Nicaragua in the 1980s. More recently there has been the Syrian conflict. Looking at the conflict as it was in 2013, it consisted primarily of a conflict between government forces and, amongst others, the Free Syrian Army (FSA). Yet, also involved in the conflict were the Abu al-Fadl al-Abbas Brigade, made up of fighters from Lebanon and Turkey.29 Turkey was also widely considered to be supporting and training the FSA. Yet a committee of legal experts concluded that it was a NIAC. This does not sit uneasily with the description “not of an international character” in CA III, yet it was not directly between states, so cannot fit in to the definition CA II either. Perhaps the best example of this problem is in relation to the conflict type that has become prevalent since 9/11 – transnational conflict. Examples include the violence perpetrated by the PKK against Turkey and by Hezbollah and Hamas against Israel.30 Transnational conflict involves a struggle between a NSA group in one state against a different state. It therefore captures elements of both IAC and NIAC. It spans across national boundaries (IAC) but the parties to this sort of conflict include NSAs (NIAC). The question of whether to legally classify such conflicts as IAC or NIAC is a confused one. On one interpretation, if one state directs hostilities against a NSA group in another state, and that ‘host’ state (in which the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 24

Christian Tomuschat, Human Rights: Between Idealism and Realism (OUP 2014) 2. Prosecutor v Tadić, Case No IT-94-1, Appeal on Jurisdiction (International Criminal Tribunal for the former Yugoslavia, 2 Oct 1995) 97. 26 Hague Convention (II) 1899, preamble. 27 Kaldor (n 2) 2. 28 Stewart (n 17) 315. 29 Louise Arimatsu and Mohbuba Choudhury, The Legal Classification of the Armed Conflicts in Syria, Yemen and Libya (Chatham House 2014) <https://www.chathamhouse.org/publications/papers/view/198023> accessed 10 March 2017. 30 Claus Kreß, ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts’ (2010) 15 Journal of Conflict & Security Law 245, 249. 25

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NSAs are located) does not consent, then it is an IAC.31 However, a substantial body of opinion prefers to classify these conflicts as NIAC, with Kreß explaining that NIAC best captures this scenario as it reflects the facts that the hostilities are between a State and a NSA.32 In the US case of Hamdan v Rumsfeld,33 a common reading of the Supreme Court’s decision is that the conflict between the US and Al-Qaeda was classified by the court as a NIAC.34 Clearly there is a lack of clarity over how to classify these frequent modern wars. Equally, the common finding that they are NIAC amounts to a finding that the vast and complex global conflicts of the modern era are merely civil wars to which only minimal legal regulation need apply. Evidently, the categories are now anachronistic and have become strained and confused in their application to modern warfare.35 C. Internationalising NIAC The concept of the internationalised armed conflict broadly enunciates that international involvement in an internal conflict can reach a point whereby that conflict becomes ‘internationalised’. It therefore could provide a useful route to extending the full set of IAC rules to some conflicts, addressing the problems outlined above. In the Tadić case, it was stated that if a foreign power had ‘overall control’ of a party to the conflict then an internal conflict would become internationalised – thus an IAC.36 However, overall control is a high threshold, requiring “not only… equipping and financing the group, but also … coordinating or helping in the general planning of its military activity”.37 In a report on the Syrian conflict in 2013, it was concluded that “State practice indicates that the overall control threshold is high and the evidence in support must be compelling”,38 which added to the conclusion that it was a NIAC, as outside state support for the FSA did not meet the threshold.39 Similarly, many concluded that the transnational conflict between Hezbollah and Israel in 2006 was a NIAC because the relationship between Hezbollah and Lebanon did not amount to overall control.40 The test itself is a convoluted legal one – in Tadić there was even confusion amongst the judges about it.41 The idea that it could be applied by conflict actors to discern the applicable rules is illusory, as Stewart illustrates when he comments that “the possibility that commanders of the Northern Alliance in… Afghanistan could be expected to assess a test the Appeals Chamber itself can hardly

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Marco Sassòli, ‘Transnational Armed Groups and International Humanitarian Law’ (2006) Harvard HCPR Occasional Paper Series, No 6, Program on Humanitarian Policy and Conflict Research, Harvard University. <http://www.hpcrresearch.org/sites/default/files/publications/OccasionalPaper6.pdf> accessed 10 March 2017. 32 Kreß (n 30), 255 33 Hamdan v Rumsfeld (2006) 548 US 557 (Supreme Court of the United States). 34 Dapo Akande, ‘Are Extraterritorial Armed Conflicts with Non-State Groups International or NonInternational?’ (EJIL 18 October 2011) < http://www.ejiltalk.org/are-extraterritorial-armed-conflicts-with-nonstate-groups-international-or-non-international/> accessed 1 March 2016. 35 Geoffrey Corn and Eric Talbot Jensen, ‘Transnational Armed Conflict: A 'Principled' Approach to the Regulation of Counter-Terror Combat Operations’ (2009) 42 Israel Law Review 46, 50. 36 Prosecutor v Tadić, T-94-1-A, Judgment (International Criminal Tribunal for the former Yugoslavia, 15 July 1999) 84. 37 ibid 131. 38 Arimatsu and Choudhury (n 29) 5. 39 ibid 19. 40 Lindsay Moir, ‘“It’s a bird! It’s a plane! It’s a non-international armed conflict!”: cross-border hostilities between states and non-state actors’ in Caroline Harvey, James Summer and Nigel White (eds), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe (CUP 2014) 93. 41 Stewart (n 17) 326.

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agree on, in the heat of battle, based on highly protected intelligence and on an ongoing basis seems slim”.42 With a high threshold and evidential burden, this concept will rarely operate to extend the fuller body of regulation over new wars. It is also of little use when one considers that NSAs are increasingly powerful and autonomous forces rather than puppets for foreign states, a good example of this being ISIS. In any case, the convoluted legal test makes it unlikely that conflict actors would be able to determine that the fuller body of IHL rules applies. D. Development in Customary International Law By dissolving the dichotomy, the full body of rules could be applied to all instances of violence that reach the legal ‘armed conflict’ threshold. In fact, as far back as 1948, the ICRC was proposing precisely this.43 This would also overcome the moral problems with “selective humanitarianism”44 and make the question of which rules apply a simple one. Customary international law (CIL) is moving in precisely this direction.45 The ICTY said in Tadić that the ‘general essence’ of rules pertaining to protect civilians, protect civilian objects and prohibit certain means of warfare were applicable in NIAC.46 In support of this trend is the ICRC Study on CIL,47 which found many of the customary rules to apply in both situations.48 To return to an example above, the lack of prohibition on indiscriminate attacks in NIAC has been remedied through the ICTY identifying such a prohibition in custom.49 However, the ICTY warned that a “mechanical transplant” had not occurred.50 Further development is therefore needed before the boundary has in effect dissolved. The ICTY noted the continuing nature of the dissolution process: “If international law… must gradually turn to the protection of human beings, it is only natural that the… dichotomy should gradually lose weight”.51 The prospects for further legal development look promising. A survey of state practice and opinio juris by Boelaert-Suominen concluded, “states are chipping away at the two-legged edifice of the laws of armed conflict”.52 Although finding substantial support for dissolution in state practice, she concluded that it did not quite meet the threshold yet for a new customary rule. Usefully, though, with humanitarian law, the availability of state practice is often ignored:53 “the ‘ought’ merges with the ‘is’, the lex !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 42

Stewart (n 17) 327. Jean Pictet, ‘Commentaries on the Geneva Conventions of 12 August 1949, Vol III: Geneva Convention relative to the Treatment of Prisoners of War’, (International Committee of the Red Cross, Geneva 1960), 31. 44 United Nations Report (n 21). 45 Sandesh Sivakumaran, ‘Re-envisaging the International Law of Internal Armed Conflict’ (2011) 22 European Journal of International Law 219; Lindsay Moir, ‘Towards the unification of international humanitarian law?’ in Richard Burchill, Nigel D White and Justin Morris (eds), International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (CUP 2005). 46 Prosecutor v Tadić (n25) 126. 47 Jean-Marie Henckaerts and Louise Doswald-Beck, ‘Customary International Humanitarian Law, Volume I: Rules’ (CUP 2005). 48 Sivakumaran (n 45) 229. 49 Prosecutor v Hadžihasanović and Kubura, IT-01-47-T, Judgment (International Criminal Tribunal for the former Yugoslavia, 15 Mar 2006) 45. 50 Prosecutor v Tadić, Case No IT-94-1, Appeal on Jurisdiction (International Criminal Tribunal for the former Yugoslavia, 2 Oct 1995) 126. 51 ibid 97. 52 Sonja Boelaert-Suominen, ‘Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for All Armed Conflicts’ (2000) 5 Journal of Conflict & Security Law 63, 102. 53 ibid 67. 43

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ferenda with the lex lata”.54 Hayashi discerns a utopian trend in recent jurisprudence, reaching aspirational conclusions by taking a broad view of state practice whilst also looking to the purpose of IHL.55 Combining some state practice with this utopian attitude trend suggests that a total dissolution in CIL could well occur. It would certainly be a logical continuation of the trend of “individualisation of international law”.56 The customary development noted above could also be used to interpret convention law in such a way as to dissolve the boundary. Judge Abi-Saab argued such a route in relation to ‘grave breaches’. He stated that, “[a]s a matter of treaty interpretation… it can be said that this new normative substance has led to a new interpretation of the Conventions as a result of ‘subsequent practice’ and opinio juris of the State Parties, a teleological interpretation of the Conventions in light of their object and purpose”.57 This argument could result in grave breaches, explicitly designated to IAC in convention law, being extended to NIAC.58 Transferring this logic to our argument, the explicit division between IAC and NIAC in treaty law could potentially, like this, be ‘interpreted away’, through drawing upon the subsequent customary development discussed above whilst engaging in a teleological interpretive approach.59 There is one important way in which the gradual dissolution encounters a significant problem and substantial resistance from states – the offering of lawful combatancy to NSAs in NIAC. This is the very barrier which ultimately led to the rejection of a unified legal regime, as suggested by the ICRC, in 1949.60 It is this issue to which the discussion now turns. 4. STATUS OF NON-STATE ACTORS The legal framework here, again, reflects the warfare of the early 20th century between the armies of sovereign states, where armies fought one another.61 New wars present a more complex picture, with those engaged in conflict often unaffiliated with states and integrated amongst civilians. IHL struggles to offer a coherent approach towards these actors. The discussion elaborates the legal dilemmas, and suggests the provisions of a new AP able to accommodate for NSAs in such a way as to maximise protection for civilians.

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Theodore Meron, ‘The Geneva Conventions as Customary Law’ (1987) 81 American Journal of International Law 348, 361. 55 Mika Nishimura Hayashi, ‘The Principle of Civilian Protection and Contemporary Armed Conflict’ in Howard Hemsel (ed), The Law of Armed Conflict: Constraints on the Contemporary Use of Force, (Ashgate 2007) 118. 56 Slaughter and Burke-White (n 3) 3. 57 Prosecutor v Tadić (n25), Separate Opinion of Judge Abi-Saab on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, Section IV. 58 Lindsay Moir, ‘Grave Breaches and Internal Armed Conflicts’ (2009) 7 Journal of International Criminal Justice 763, 773. 59 Vienna Convention on the Law of Treaties 1969, art 31. 60 Geoffrey Corn, ‘Thinking the Unthinkable: Has the Time Come to offer Combatant Immunity to Non-State Actors?’ (2011) 22 Stanford Law and Policy Review 253, 268. 61 Charles H. B Garraway, ‘‘Combatants’ – Substance or Semantics?’ in Michael Schmitt and Jelena Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines (Martinus Nijhoff Publishers 2007) 328.

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A. Lawful Combatancy i.

The Legal Framework

In IAC there are two statuses: ‘combatant’ and ‘civilian’. Combatants are lawful targets of attack, whilst civilians are not. Combatants have the right to participate in hostilities (‘combatant privilege’) and have POW status upon capture, meaning they are not liable for their belligerent acts that do not violate IHL.62 However, states have historically been unwilling to extend combatant privilege to NSAs (necessarily excluding the status entirely from NIAC and thus obstructing a unified legal regime), influenced largely by the threat to sovereignty posed by NSAs enjoying immunity from liability for belligerent acts. NSAs therefore have no recognised status in IHL, existing “in a twilight zone between lawful combatancy and common criminality”.63 Elaborating the conditions for lawful combatancy brings us to the problem. It is conditional upon them distinguishing themselves and complying with IHL. The heart of lawful combatancy, therefore, is to induce compliance with IHL and ensure that those engaged in fighting are distinguished from those who are not, both of which protect civilians. Yet the denial of lawful combatancy to NSAs diminishes these protections from many new wars. ii.

Extending Lawful Combatancy

The main issue with restricting the availability of lawful combatancy is the threat to civilians that it poses. NSAs are in an asymmetrical relationship with states, in terms of strength and resources. Without incentives like combatant privilege to induce compliance, the likelihood that they will resort to methods of redressing that balance which violate IHL, and are at the peril of civilians, is increased.64 Equally, does the continuing application of domestic criminal law (through withholding lawful combatancy) deter NSAs from belligerency? The answer is likely to be no, considering that it is part of the state system against which they are fighting.65 The prevalence of NSAs66 makes it practically difficult to deal with them using domestic judicial systems anyway,67 especially when one considers the destabilising effect on state institutions in new wars. The inability of states to criminally sanction NSAs for belligerent acts if they have lawful combatancy is also less problematic when one considers that combatant immunity does not limit the ability of states to preventively detain NSAs (implied in CA III), just from sanctioning them for belligerency.68 States argue that extending lawful combatancy would legitimate NSAs, but this confuses the jus ad bellum/jus in bello distinction.69 IHL applies to violence reaching the threshold of ‘armed conflict’ regardless of the legality of this violence, aiming only to reduce suffering and not to legitimise behaviour. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 62

Geneva Convention III. James E Bond, ‘Application of the Law of War to Internal Conflicts’ (1973) 3 Georgia Journal of International and Comparative Law 345, 367. 64 Bassiouni (n 22) 715. 65 Cedric Ryngaert, ‘Non-State Actors and International Humanitarian Law’ (2008) (Institute for International Law Working Paper), 4. 66 Marco Sassòli, ‘Possible Legal Mechanisms to Improve Compliance by Armed Groups with International Humanitarian Law and International Human Rights Law’ (paper submitted at the Armed Groups Conference, Vancouver, 13-15 November 2003), 1. 67 Garraway (n 61) 331. 68 Corn (n 60) 283. 69 Corn (n 60) 284. 63

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There are also theoretical arguments for extending combatant immunity. The ‘just war’ theory is prominent in the denial of lawful combatancy to NSAs.70 This Medieval European idea designates states as the ‘legitimate authority’ and accordingly only those fighting for states are privileged. In an era where individuals are the “fundamental units of moral concern”,71 it is theoretically problematic to conceive of states as automatically legitimate. However, this does not mean that we should search for what is legitimate, but rather, a concern for individuals should mean that IHL focuses on reducing suffering rather than unascertainable notions of legitimacy. Reducing suffering would be best served through compliance with IHL – which extension of lawful combatancy aims to induce. It is undeniable, however, that extending lawful combatancy to NSAs would violate state sovereignty. Corn mounts a convincing argument that transnational NSAs do not pose a great threat to sovereignty, seeking only to “influence state policy and conduct”, rather than to “topple state authority”.72 However, this cannot be said of all NSAs, and certainly ISIS, for example, had territorial ambitions at the height of their strength. But by abstracting the issues we can see that it is a tension between sovereignty and humanitarian concerns. To choose ‘sovereignty’ in such an equation is to ignore the momentous changes since WWII, which have not just been manifest in public consciousness of human rights, but in the substance of international law (for example, International Human Rights Law and humanitarian intervention). It would undermine the protection of civilians, which ICTY described as the “bedrock of modern humanitarian law”.73 There is one NSA type that can already enjoy lawful combatancy – resistance movements. This extension occurred in AP I, which designated colonial struggles as IAC.74 If this extension is based on the perceived legitimacy of their cause (overcoming colonial domination), then as the causes of NSAs often lack this purpose, should lawful combatancy be denied to them? Firstly, a less abstract reading of the extension to resistance movements is that it represented nothing more than the new power of ex-colonies.75 Secondly, another interpretation could be that this final extension to all NSAs is a logical continuation of the gradual move away from sovereignty to concern for individual rights (best protected through NSAs complying with IHL and distinguishing themselves). The extension to resistance movements merely marked the middle of this transition, where sovereignty began to yield to individual rights (against subjugation). In light of these arguments, the new AP should extend lawful combatancy to NSAs. However, the conditions for lawful combatancy must follow the model of Art 4(A)(2) and Art 43 of AP I, and not the controversial Art 44(3) AP I provision. The focus of the new requirements would therefore be distinguishing themselves from civilians and compliance with IHL. It would be counterproductive to follow the ‘loosened’ requirements of Art 44(3). They are controversial and, as pointed out by states at the diplomatic conference, they put civilians at risk.76 Yet we are left with two overarching problems. How can states be induced to agree to such an extension, and what about the NSAs who will fail to comply with the requirements for lawful combatancy? !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 70

Cecile Fabre, ‘Cosmopolitanism, just war theory and legitimate authority’ (2008) 84 International Affairs 963, 963. 71 ibid 965. 72 Corn (n 60) 282. 73 Prosecutor v Kupreškić. Case No IT-95-16, Judgment (International Criminal Tribunal for the former Yugoslavia, 14 Jan 2000) 524. 74 Additional Protocol I to the Geneva Conventions, art 1(4). 75 Corn (n 60), 272 76 Henckaerts and Doswald-Beck (n 47), 387

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In terms of the second question, there is evidence that some NSAs want to comply with IHL,77 but it would be ignoring a reality of new wars to suppose that NSAs will frequently fulfil the lawful combatancy conditions. Take the Taliban and Al-Qaeda as examples, there is some discussion around whether the Taliban distinguish themselves, but this is irrelevant because such groups do not comply with the rules of IHL and therefore can not be lawful combatants.78 Killing civilians is central to their methods, for example, the 1998 Fatwah of Bin Laden proclaimed a duty to kill “Americans and their Allies, civilians and military”79 and the atrocities perpetrated by ISIS against civilians in Iraq and Syria were described in a recent UN Report to include “ill-treatment, murder, and physical and sexual violence”.80 It is important, therefore, to consider how the law treats these non-compliant NSAs to see if reform of this area is also needed in the AP. The necessary reforms that are identified will, interestingly, also offer us a way to induce states to agree to the extension of lawful combatancy to NSAs. B. Targeting i.

The Legal Framework

The way that the current law would treat those NSAs who do not meet the requirements (which, as lawful combatancy is not yet offered to them, reflects their current position) is to treat them as civilians.81 However, they do lose their civilian privilege from attack (thus meaning they can be lawfully targeted) “for such time as they take a direct part in hostilities”.82 There has been debate over what this means. The ICRC interpretation is restrictive, arguing that, “civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities”83 and elaborating constitutive elements of what amounts to direct participation.84 The expert Cassese supports this narrow conception.85 Both temporal and functional issues arise with this approach.86 The temporal issue inspires the term ‘revolving-door protection’, in reflection of the frequent shift

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Churchill Ewumbue-Monono, ‘Respect for international humanitarian law by armed non-state groups in Africa’ (2006) 88 I.R.R.C. 905 78 Joseph Bialke, ‘Al-Qaeda and Taliban Unlawful Combatant Detainees, Unlawful Belligerency and the International Law of Armed Conflict’ (2004) 55 Air Force Law Review 2, 16. 79 Rohan Gunaratna, Inside Al-Qaeda (Columbia University Press 2002) 45. 80 United Nations Assistance Mission for Iraq and Office of the United Nations High Commissioner for Human Rights, ‘Report on the Protection of Civilians in the Armed Conflict in Iraq’ (11 December 2014-30 April 2015) ii. <http://www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_4th_POCReport-11Dec201430April2015.pdf> accessed 1 March 2016. 81 Nils Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities’ (International Committee of the Red Cross 2009) 27. 82 Addition Protocol I to the Geneva Conventions, Article 51(3); Additional Protocol II to the Geneva Conventions, Article 13(3). 83 ICRC (n 81) 17. 84 ICRC (n 81) 16. 85 Antonio Cassese, Expert Opinion on Whether Israel's Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law, submitted on 18 July 2003 to the Israeli Supreme Court at the request of the Petitioners in the Case: Israel HCJ, PCATI v Israel 86 Kenneth Watkin, ‘Opportunity Lost: Organised Armed Groups and the ICRC ‘Direct Participation in Hostilities’ Interpretive Guidance’ (2010) 42 International Law and Politics 641, 682

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from lawful to unlawful target, allowing “terrorists [to] enjoy the best of both worlds”.87 The Israeli Supreme Court explained that: [T]errorists are granted immunity from harm for the entire time that they plan terrorist attacks,… this immunity is removed for only a short time, at the time of the actual execution of the terrorist attack. After this…the immunity once again applies… even if it is known that they are returning… home to plan and execute the next terrorist attack.88 The functional issue is that direct participation requires three conditions: threshold of harm, direct causation and belligerent nexus. This excludes logistical roles like transporting weapons89 and the assembly and storage of IEDs.90 Considering that IEDs pose particularly deadly threats to civilians, excluding the targeting of those making them is problematic. Both the functional and temporal aspects unfairly advantage NSAs, allowing those in logistical army roles to be targeted whilst their NSA equivalents enjoy immunity from attack. The temporal issues are particularly troubling, as the state is under a burden continuously to assess whether the target is protected at that exact moment, which is impractical in actual combat operations91 and complicates operations in a way that increases risk to civilians.92 It also means that lawful combatants who are victimised by the activities of the NSAs whom they cannot target will “lose respect for the law, thereby exposing the civilian population as a whole to greater danger”.93 The law must find a way to overcome revolving-door protection in consideration of these risks to civilians. The ICRC’s recent idea of a “continuous combat function”94 could be useful here. Through interpreting existing law, they identified the category of organised armed groups (OAGs) belonging to a non-state party, performing a continuous combat function. The important point for our purposes is that members lose revolving-door protection for the duration of their membership. This means that, “a Taliban fighter who plants improvised antipersonnel mines remains a lawful target when he puts down his tools and walks home for lunch”.95 Although conceptually useful in recognising NSAs as formed into groups who should lose civilian protection more continuously (not on a revolving-door basis), it suffers a drawback in that continuous combat function depends on the direct participation criteria.96 This sets a high threshold for membership, meaning the scope for attacking OAGs is still not equivalent to armies – it remains narrower.97 The new AP should build upon the continuous combat function idea to treat NSAs who are formed into groups as groups rather than individuals directly participating. However, the approach to membership of an OAG should be based simply on whether one is a member of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 87

David Kretzmer, ‘Targeted Killings of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16 E.J.I.L. 171, 193 88 Public Committee Against Torture in Israel v Government of Israel, Case No HCJ 769/02 (Israeli Supreme Court ,13 December 2006) 12. 89 Watkin (n 86) 43. 90 ICRC (n 81), 54 91 Michael Schmitt, ‘‘Direct Participation in Hostilities’ and 21st Century Armed Conflict’ in Horst Fischer et al (eds), Crisis Management and Humanitarian Protection: Festschrift ur Dieter Fleck, (Berliner WissenschaftsVerlag 2004) 510. 92 Watkin (n 86), 683 93 Schmitt (n 91), 510 94 ICRC (n 75), Dapo Akande, ‘Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities’ (2010) 59 International and Comparative Law Quarterly 180, 186. 95 Gary D Solis, The Law of Armed Conflict: International Humanitarian Law in War (CUP 2006) 206. 96 ICRC (n 75) 33. 97 Watkin (n 86) 649.

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an organisation under a command structure, with membership indicated by a simple notion of combat function.98 This would be broad, covering logistical roles. Such a move aligns the positions of armed forces and OAGs. Civilians who take part individually should continue to be separate, but their revolving-door protection should be replaced with the idea of repetitious engagement deeming them to be “continuously engaged”.99 They would then lose civilian protection until they “affirmatively disengage”.100 C. New Additional Protocol: Overview Currently, NSAs have no option of lawful combatancy and thus little reason to comply with IHL. The asymmetry here favours the state. Yet, as civilians directly participating, they have revolving-door protection, giving them an advantage over state armies who are always legitimate targets. The only losers across both scenarios are civilians. The new AP, the main provisions of which are integrated into the discussion above, would rationalise the situation. NSAs would be rewarded for complying with IHL, and induced to comply with IHL, through combatant privilege. However, if partaking in a group that is not complying with the lawful combatancy conditions (endangering civilians) then they would be disadvantaged through the law removing their civilian privilege from attack on a long-term basis. It is illogical for them to gain the benefit of revolving-door protection by not complying with IHL or distinguishing themselves. In turn, this long-term removal of civilian privilege should add to the motivation to comply in the first place, whilst also simplifying the targeting of NSAs (eradicating the risks to civilians from complicated targeting missions where NSAs enjoy revolving-door protection). This is an ambitious endeavor, but (and here is where the question of how states could be induced to extend combatant privilege to NSAs is finally addressed) the proposed AP is a ‘give-and-take’ deal for states. They must offer lawful combatancy to NSAs, but if the NSAs do not fulfil the conditions for lawful combatancy, then states are allowed to target more of them, more continuously. In other words, states will no longer be disadvantaged by NSAs revolving-door protection. 5. CONCLUSION This paper examines two of the main issues that arise in relation to the application of IHL to new wars. They demonstrate the same undercurrent of state-centric rules struggling in the face of conflicts rife with new actors in new settings. The challenges identified and the changes discussed fit into a larger trend in international law towards the effective protection of individuals whilst the outdated framework perpetuates a focus on sovereign states. IHL is astute to the realities of war, considering military necessity and permitting civilian deaths as ‘collateral damage’, but humanity is at its core. In line with larger trends of “individualisation”,101 the humanitarian purpose of IHL has a renewed emphasis, evidenced even in the shift to calling it humanitarian law.102 The Martens Clause shows that humanity is not only the implicit rationale, it is legally at its heart. But whilst the IHL framework should be working to this humanitarian end, the examination of it in new wars illustrates that its purpose is being undermined by outdated rules. The paper suggests how these rules can change, both through customary legal development and in a new AP. As we reflect upon the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 98

ibid 690. ibid 692. 100 ibid 693. 101 Slaughter and Burke-White (n 3) 3. 102 Corn (n 60) 276. 99

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persistent scourge of war over recent decades, such efforts are important ones. An often quoted sentiment of the philosopher Cicero is ‘inter arma enim silent legēs’, meaning ‘in war, law is silent’. Without development in IHL, then, to the peril of many, this phrase will hold poignant truth.

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Primary Sources Cases Hamdan v Rumsfeld 548 US 557 (2006). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996). Prosecutor v Hadžihasanović and Kubura, IT-01-47-T, Judgment, (15 Mar 2006) Prosecutor v Kupreškić. Case No IT-95-16, Judgment, (Jan 14 2000) Prosecutor v Tadić, Case No IT-94-1, Appeal on Jurisdiction (Oct 2, 1995) Separate Opinion of Judge Abi-Saab on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić, (IT-95-1), Appeals Chamber, 2 October 1995, Section IV. Prosecutor v Tadić, T-94-1-A, Judgement, (15 July 1999). Public Committee Against Torture in Israel v Government of Israel, Case No HCJ 769/02 (13 December 2006). Legislation Additional Protocol I to the Geneva Conventions relating to the Protection of Victims of International Armed Conflict. Additional Protocol II to the Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflicts. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field 1864. Geneva Convention III relative to the Treatment of Prisoners of War 1949. Geneva Conventions 1949. Hague Convention II 1899. Lieber Code 1863. Vienna Convention on the Law of Treaties 1969.

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Secondary Sources Cited Literature Akande D, ‘Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities’ (2010) 59 International and Comparative Law Quarterly 180. Akande D, ‘Are Extraterritorial Armed Conflicts with Non-State Groups International or Non-International?’ (EJIL 18 October 2011) < http://www.ejiltalk.org/are-extraterritorialarmed-conflicts-with-non-state-groups-international-or-non-international/> accessed 1 March 2016. Arimatsu L and Choudhury M, The Legal Classification of the Armed Conflicts in Syria, Yemen and Libya, (Chatham House 2014). <https://www.chathamhouse.org/publications/papers/view/198023> accessed 10 March 2017. Balint J, ‘Conflict, Conflict Victimization, and Legal Redress: 1945-1996’ (1996) 59 Law and Contemporary Problems 231. Bassiouni M C, ‘Justice and Peace: The Importance of Choosing Accountability over Realpolitik’ 35 Case Western Reserve Journal of International Law 191. Bassiouni M C, ‘The New Wars and The Crisis of Compliance with the Law of Armed Conflict by Non-State Actors’ (2008) 98 The Journal of Criminal Law & Criminology 711. Bialke J, ‘Al-Qaeda and Taliban Unlawful Combatant Detainees, Unlawful Belligerency and the International Law of Armed Conflict’ (2004) 55 Air Force Law Review 16. Boelaert-Suominen S, ‘Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a Uniform Enforcement Mechanism for All Armed Conflicts?’ (2000) 5 Journal of Conflict & Security Law 63. Bond J E, ‘Application of the Law of War to Internal Conflicts’ (1973) 3 Georgia International and Comparative Law 345. Bugnion F, ‘Just wars, wars of aggression and International Humanitarian Law’ (2002) 84 International Review of the Red Cross 523. Cassese A, ‘Expert Opinion on Whether Israel's Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law’, submitted on 18 July 2003 to the Israeli Supreme Court at the request of the Petitioners in the Case: Israel HCJ, PCATI v Israel. Corn G and Talbot Jensen E, ‘Transnational Armed Conflict: A ‘Principled’ Approach to the Regulation of Counter-Terror Combat Operations’ (2009) 42 Israel Law Review 46. Corn G, ‘Thinking the Unthinkable: Has the Time Come to offer Combatant Immunity to Non-State Actors?’ (2011) 22 Stanford Law & Policy Review 253. Ewumbue-Monono C, ‘Respect for international humanitarian law by armed non-state groups in Africa’ (2006) 88 International Review of the Red Cross 905.

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Fabre C, ‘Cosmopolitanism, just war theory and legitimate authority’ (2008) 84 International Affairs 963. Garraway C H B, ‘‘Combatants’ – Substance or Semantics?’ in Schmitt M and Pejic J (eds), International Law and Armed Conflict: Exploring the Faculties, Essays in Honour of Yoram Dinstein. (Martinus Nijhoff Publishers 2007) 317. Greenwood C, ‘Historical Development and Legal Basis’ in Fleck D, The Handbook of Humanitarian Law in Armed Conflicts (OUP 1995) 1. Gunaratna R G, Inside Al Qaeda. (Columbia University Press 2002). Hayashi MN, ‘The Principle of Civilian Protection and Contemporary Armed Conflict’ in Howard Hemsel (ed), The Law of Armed Conflict: Constraints on the Contemporary Use of Force (Ashgate 2007) 105. Henckaerts J M and Doswald-Beck L, Customary International Humanitarian Law, Volume I: Rules (CUP 2005). Kaldor M, New and Old Wars: Organized Violence in a Global Era (Cambridge Polity Press 2005). Kreß C, ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts’ (2010) 15 Journal of Conflict & Security Law 245. Kretzmer D, ‘Targeted Killings of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16 European Journal of International Law 171. Lamp N, ‘Conceptions of War and Paradigms of Compliance: The ‘New War’ Challenge to International Humanitarian Law’ (2011) 16 Journal of Conflict & Security Law 225. Meron T, ‘The Geneva Conventions as Customary Law’ (1987) 81 American Journal of International Law 348. Meron T, ‘Classification of armed conflict in the former Yugoslavia: Nicaragua’s fallout’ (1998) 92 American Journal of International Law 236. Moir L, ‘Towards the unification of international humanitarian law?’ in, Burchill R, White N D and Morris J, International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey (CUP 2005) 108. Moir L, ‘Grave Breaches and Internal Armed Conflicts’ (2009) 7 Journal of International Criminal Justice 763. Moir L, ‘It’s a bird! It’s a plane! It’s a non-international armed conflict!’: cross-Border hostilities between states and non-state actors’ in Harvey C et al (eds), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe (CUP 2014) 71.

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Odermatt J, ‘Between Law and Reality: ‘New Wars’ and Internationalised Armed Conflict’ (2014) 5 Amsterdam Law Forum 19. Pictet J, ‘Commentaries on the Geneva Conventions of 12 August 1949, Vol III: Geneva Convention relative to the Treatment of Prisoners of War’ (Geneva, ICRC 1960) 31. Power S, A Problem from Hell: America and the Age of Genocide (Basic Books 2002). Rothe D L and Collins V E, ‘The International Criminal Court: A Pipe Dream to End Impunity’ (2013) 13 International Criminal Law Review 191. Ryngaert C, ‘Non-State Actors and International Humanitarian Law’ (2008) Institute for International Law Working Paper. Sassòli M, ‘Possible Legal Mechanisms to Improve Compliance by Armed Groups with International Humanitarian Law and International Human Rights Law’, paper submitted at the Armed Groups Conference, Vancouver, 13–15 November 2003. Sassòli M, ‘Transnational Armed Groups and International Humanitarian Law’ (2006) Harvard HCPR Occasional Paper Series, No 6, Program on Humanitarian Policy and Conflict Research, Harvard University. <http://www.hpcrresearch.org/sites/default/files/publications/OccasionalPaper6.pdf> accessed 10 March 2017. Schmitt M N, ‘‘Direct Participation in Hostilities’ and 21st Century Armed Conflict’ in Fischer, H., et al, (eds), Crisis Management and Humanitarian Protection: Festschrift fur Dieter Fleck. (Berliner Wissenschafts-Verlag 2004) 505. Sivakumaran S, ‘Re-envisaging the International Law of Internal Armed Conflict’ (2011) 22 European Journal of International Law, pp. 219 – 264. Slaughter A M and Burke-White W, ‘An International Constitutional Moment’ (2002) 43 Harvard International Law Journal 1. Snow D M, Uncivil Wars: International Security and the New Internal Conflicts (Lynne Rienner 1996). Solis G D, The Law of Armed Conflict: International Humanitarian Law in War (CUP 2006). Stewart J G, ‘Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict’ (2003) 85 International Review of the Red Cross, 313. Tomuschat C, Human Rights: Between Idealism and Realism (OUP 2014). Watkin K, ‘Opportunity Lost: Organised Armed Groups and the ICRC ‘Direct Participation in Hostilities’ Interpretive Guidance’ (2010) 42 International Law and Politics 641.

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Reports and Records Melzer N, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities’ (International Committee of the Red Cross 2009). ‘Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva 1974–1977’ (1978), CDDH/I/SR 23, vol VIII, 215. United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic: Report on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013 <http://www.un.org/disarmament/content/slideshow/Secretary_General_Report_of_CW_Inve stigation.pdf> accessed 1 March 2016. United Nations Assistance Mission for Iraq and Office of the United Nations High Commissioner for Human Rights, ‘Report on the Protection of Civilians in the Armed Conflict in Iraq’ (11 December 2014-30 April 2015) ii. <http://www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_4th_POCReport11Dec2014-30April2015.pdf> accessed 1 March 2016. United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic: Report on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013 <http://www.un.org/disarmament/content/slideshow/Secretary_General_Report_of_CW_Inve stigation.pdf> accessed 1 March 2016.

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DO THE RECENT CHANGES IN THE UK’S APPROACH TO THE DEPRIVATION OF CITIZENSHIP AND STATELESSNESS CONSTITUTE AN UNACCEPTABLE ATTACK ON BRITISH CITIZENSHIP? Will Merry The Immigration Act 2014 reformed the British Nationality Act 1981 so as to make it easier for the Home Secretary to deprive foreign nationals of their British citizenship – even where it may make them stateless. This paper assesses the reforms in the light of a rights-based approach to citizenship, the evil of statelessness and the cases of Pham and Al-Jedda. It shall be demonstrated that the courts may be the last bastion for any kind of meaningful rights protection for some British citizens against an increasingly draconian direction in government policy. These legal developments are then placed in the context of other government policies in order to argue that when looked at together they amount to an attack on the essence of British citizenship. Keywords: Citizenship, Immigration, Statelessness, Human Rights, Government Policy ‘Sovereignty is nowhere more absolute than in matters of emigration, naturalization, nationality and expulsion’1 Before 2014, s40 of the British Nationality Act 1981 (BNA) allowed the Home Secretary to deprive a person of their British citizenship only when it was acquired by fraud, false representation or concealment of a material fact, and when doing so would be conducive to the public good.2 Deprivation was not possible if the Home Secretary was confident that they would make that person stateless.3 This concerned people who had naturalised4 as British citizens and continues to do so under s40 BNA as amended by s66 of the Immigration Act 2014 (IA). The IA’s amendment means that the Home Secretary can now deprive a person of their citizenship if they have ‘reasonable grounds’ for believing that the person is able to become a national of a country outside of the UK.5 The reforms of the IA are emblematic of the growing political appetite after 9/11 to expand the law on deprivation of citizenship6 so that it can be used as a tool to combat terrorism as well as some other serious crimes.7 This paper has several aims. Firstly, it seeks to find a rights-based conception of what British citizenship means that is broadly consistent with the works of Marshall and Arendt. It then seeks to demonstrate the problem of statelessness, framing it in relation to the recent cases of Al-Jedda 8 and Pham. 9 These 1

Hannah Arendt, The Origins of Totalitarianism (2nd edn, The World Publishing Company 1951), 278. British Nationality Act 1981, s 40(2)-(3). 3 ibid, s40(4). 4 Laurie Fransman British Nationality Law and the 1981 Act (Fourmat Publishing 1982), 97. 5 BNA (n 2), s 40(4A)(c). 6 Laurie Fransman, Fransman's British Nationality Law (3rd edn, Bloomsbury Professional 2011), V 7 Matthew Gibney, ‘Beware States Piercing Holes into Citizenship’ in Audrey Macklin and Rainer Bauböck, The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? (European University Institute, 2015), 39-43; James Cusick ‘Asian sex abusers to be stripped of UK citizenship and deported’ (Independent, 25 February 2016) <http://www.independent.co.uk/news/uk/crime/asian-sex-abusers-to-be-stripped-of-uk-citizenshipand-deported-a6896051.html> accessed 7 March 2016. 8 Secretary of State for the Home Department v Al Jedda [2013] UKSC 62. 9 Pham v Secretary of State for the Home Department [2015] UKSC 19. 2

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developments shall then be placed in the context of other government policies that affect the UK’s stance towards statelessness. It will be argued that the developments in this area constitute a serious attack on British citizenship. 1. THE MEANING OF CITIZENSHIP It has often been argued that citizenship is of “fundamental importance”10 to a human being. The term is, however, amorphous. ‘Citizenship’ had no legal meaning before the BNA came into force in 1983.11 There is a distinction between the formal legal classification of ‘British citizen’ under Part 1 of the BNA and the much broader theoretical discourse on citizenship which has been ongoing since Aristotle.12 Hannah Arendt13 and Thomas Marshall14 contributed two major contemporary viewpoints as to what constitutes citizenship. In simple terms, citizenship is to Arendt the “right to have rights.”15 She thus makes the ability to exercise certain fundamental rights, such as the right to life or to have an opinion16 as the defining feature of citizenship. She eschews the existence of inalienable, natural rights that are enforceable outside of the state. Instead, she argues that rights and the state are intrinsically linked.17 Marshall’s view is broader. He identifies three categories of rights that are contingent upon citizenship: civil, political and social.18 These rights are not always tangible or provided for in legislation, but are wide-reaching in that they “facilitate life in society”. 19 Alongside these rights, Marshall suggests that citizenship contains a duty-based element which requires citizens to have a “lively sense of responsibility to the welfare of the community.” 20 Prabhat distinguishes these views by describing Arendt’s approach as “minimal”21 because citizenship rights are defined only in contrast with the absolute lack of rights afforded to the stateless. Marshall’s view is “maximal” 22 as it covers more than fundamental rights to individual freedom that secure the enforcement of rights against others.23 It comprises a broader spectrum of benefits, rights and obligations related to an individual’s relationships with society. These include the right to a “modicum of economic welfare”, and to share equally in the “social heritage” to the extent that one can live a “civilized” life according to societal standards at the time. 24 The content of citizenship rights differs with either view. 10

ibid, [120] (Lord Reed). Caroline Sawyer and Brad Blitz, ‘De facto statelessness in the United Kingdom’ in Caroline Sawyer and Brad Blitz (eds) Statelessness in the European Union (CUP 2011),161. 12 Aristotle, Politics, Book III (tr) Trevor Saunders (Penguin 1981) 13 Arendt (n 1). 14 Thomas Marshall, Citizenship and Social Class (CUP 1950). 15 Arendt (n 1), 296. 16 ibid, 302. 17 Matt Hann, ‘Recognising Recognition: Hannah Arendt on (the Right to Have) Rights’ (Political Studies Association, 2013) <https://www.psa.ac.uk/sites/default/files/988_509.pdf> accessed 13 March 2016, 19. 18 Marshall (n 15), 10. 19 Devyani Prabhat, ‘Deprivation Judgments on the Meaning of British Citizenship: A Socio-Legal Analysis’ (Draft version cited with permission 2015), 5. 20 Marshall (n 15), 70. 21 Prabhat (n 20), 5-6. 22 ibid. 23 Marshall (n 15), 10-11. 24 ibid. 11

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However, it is possible to identify a common thread. Marshall’s conception of civil rights, which involves the right to assert rights against others, is comparable to Arendt’s right of recognition. Both Arendt and Marshall thus acknowledge the importance of certain rights for ‘true’ citizenship. This nexus between fundamental rights and citizenship is placed in the context of an individual’s relationship to the state, which is the institution capable of recognising those rights and facilitating their exercise.25 For an individual to actualise fundamental rights, there must be a domestic connection of some kind.26 Benhabib explains this by describing ‘rights’ as granting a “moral claim to membership” of a community, alongside “treatment compatible with the claim to membership”.27 Without a group against whom rights can be exercised, there can effectively be no rights. It is argued that where a person is deprived their ability to enjoy fundamental rights vis-à-vis their domestic community, the core of citizenship has been undermined. Thus, irrespective of whether the minimal or maximal approach is taken, the common thread that constitutes the core aspects of citizenship must be met for ‘true’ British citizenship to be intact. I shall now analyse the recent changes in the UK’s approach to citizenship and statelessness in the light of this definition. 2. THE IMPORTANCE OF BRITISH CITIZENSHIP IN THE 21ST CENTURY The UK’s legal approach to citizenship is complex. Many rights often associated with citizenship such as a right to abode and work can be enjoyed without citizenship status because the BNA establishes six kinds of British Nationality, of which ‘British Citizen’ is only one.28 Just as citizenship in Ancient Rome was necessary for the full enjoyment of key civil, political and socioeconomic benefits,29 so it is now, with a variety of rights contingent on that status. For example, ‘British Citizen’ is the only classification under the BNA that grants an automatic right to abode30 and work.31 This paper shall take an expansive approach as to the legal definition of citizenship. This is consistent with s40(1) BNA, which includes all 6 categories of British Nationality in relation to the deprivation of citizenship. The term ‘nationality’ shall, therefore, be used synonymously with ‘citizenship’. British citizenship has significant consequences for an individual. Firstly, it affords individuals protection vis-à-vis other states.32 This is vital where citizens are abroad, lose the right to remain in foreign nations and thus need re-admittance to the UK. Secondly, in some circumstances, the denial of citizenship status can breach Article 8 of the European Convention on Human Rights (ECHR), the right to a private and family life. The rationale for this, as set out 25

See Arendt (n 1), 276; Marshall (n 15), 10-11. Prabhat (n 20), 6. 27 Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (CUP 2004), 56. 28 Sawyer (n 12), 161. 29 Ari Byren, ‘Judging Empire: Courts And Culture in Rome's Eastern Provinces’ Law and History Review 30 (3) 771-811, 786-787. 30 Immigration Act 1971, s 2(1)(a). 31 Home Office, ‘Confirmation of British Nationality Status’ (Home Office, June 2014) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/322367/GUIDE_NS_-_June_2014update.pdf> accessed 7 March 2016. 32 Guy Goodwin-Gill, ‘Deprivation of Citizenship, Statelessness, and International Law - More Authority (if it were needed...)’ (Parliament, 2014) <http://www.parliament.uk/documents/joint-committees/human-rights/GSGGDeprivationCitizenship-MoreAuthority.pdf> accessed 14 January 2016, 1. 26

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in Genovese v Malta,33 is that the detriment to an individual’s “social identity” can be significant enough so as to bring it within Article 8’s scope.34 A third example is that a lack of citizenship status can lead to discrimination on social and governmental levels. 35 The right not be discriminated against is protected under Article 14 ECHR where the discrimination has occurred in relation to the enjoyment of other Convention Rights. This kind of discrimination has been ruled possible in cases such as Ali36 and is the subject of substantial litigation.37 As well as having a significant impact from a human rights perspective, British nationality can have less tangible impacts on individuals and their identities. An example of this is the effect of not having it on children. In 201438 it was found that unregistered children felt that as a result of not being registered they were unable to contribute fully to society. The acknowledged importance of citizenship to an individual’s identity39 as well as their ability to contribute to society and has been stressed by recent governments. The coalition government went as far as putting Citizenship Studies in the National Curriculum,40, and the Big Society initiative stresses active and responsible citizenship.41. These policies seem to coincide with Marshall’s broad conception of citizenship. However, it shall be shown that the developing legal position does not grant the benefits of this approach to every British citizen. 3. THE PROBLEM OF STATELESSNESS The significance of statelessness is best illustrated using historical examples. Arendt’s ‘The Origins of Totalitarianism’42 explains the treatment of Jewish people and other ‘undesirables’ in the context of human rights rhetoric43 after WW1. Germany used denationalisation as a means of banishing them.44 The stateless people were perceived as “scum of the earth everywhere”; they had their possessions stripped from them and as such were poor, had no passports and were forced to flood into neighbouring countries.45 The populace of those countries found it easy to 33

App no 53124/09 (ECtHR,11 October 2011). ibid, para 33. 35 Bridget Anderson, ‘Citizenship: What Is It and Why Does It Matter?’ (The Migration Observatory, 28 March 2011) <http://www.migrationobservatory.ox.ac.uk/sites/files/migobs/Citizenship%20Policy%20Primer.pdf> accessed 14 January 2016, 5. 36 See R (on the application of Ali) v Secretary of State for the Home Department; R (on the application of Bibi) v Secretary of State for the Home Department [2015] UKSC 68, [57]. 37 See, AA (Somalia) v Entry Clearance Officer [2013] UKSC 81; Agardi v Penitentiary Judge of the Metropolitan Court, Budapest, Hungary [2014] EWHC 3433 (Admin). 38 Ealing Law Centre ‘Systemic Obstacles to Children's Registration as British Citizens’ (PRCBC, 2014) <https://prcbc.wordpress.com/research/> accessed 13 January 2016. 39 Home Office, ‘Asylum Policy Instruction: Statelessness and applications for leave to remain’ (Home Office, 2016) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/501509/Statelessness_AI_v2.0__EX T_.pdf> accessed 7 March 2016. 40 HM Government, ‘National curriculum in England: citizenship programmes of study for key stages 3 and 4’ (HM Government, 2013) <https://www.gov.uk/government/publications/national-curriculum-in-england-citizenshipprogrammes-of-study/national-curriculum-in-england-citizenship-programmes-of-study-for-key-stages-3-and-4> accessed 1 January 2016. 41 Anderson (n 36) 5-6. 42 Arendt (n1). 43 ibid, 269. 44 ibid. 45 ibid. 34

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succumb to anti-immigration rhetoric.46 As a result, there became a group of people who were viewed as undeserving of rights, and faced extreme discrimination.47 Even where they were able to naturalise into receiving countries, their citizenship was precarious and often removed, opening the possibility for civil rights abuses.48 This example shows that the UN’s later assertion that there are inalienable human rights49 is only enforceable in practice when those humans are recognised by the states in which they reside. Loose parallels can be drawn from the above example to the current media and government attitudes towards terror suspects and Muslims. For instance, The Sun recently50 claimed that 1 in 5 young British Muslims had sympathy for jihadis.51 While that is an extreme example, it was found in 2012 that there exists a ‘hegemony of Islamophobia’52 in the mainstream media. Any conflation between Muslims and extremists engenders a divide between foreign-born British citizens and UK-born citizens, resulting in the creation of an ‘other’ who is perceived as a national threat.53 The BNA reflects this, as the IA’s reforms concern only naturalised citizens.54 The current Home Secretary has regularly55 attempted to make it easier to deprive foreign-born British citizens of their citizenship for national security reasons. In 2014 she even appeared to lament the fact that international law56 prevents the UK from making someone stateless,57 whilst talking in the context of Muslim extremists. The government’s position increasingly implies two tiers of British citizenship - the UK-born citizen and the more precarious foreign-born citizen.

ibid. ibid, 280-282, 285. 48 ibid, 285. 49 Universal Declaration of Human Rights 1948, Preamble. 50 Patrick Brione ‘Statement on Survation’s Poll of Muslims for The Sun’ <http://survation.com/statement-onsurvations-poll-of-muslims-for-the-sun/> (Survation, 2015) 17 January 2016. 51 Tom Newton Dunn, ‘1 in 5 Brit Muslims’ sympathy for jihadis’ (The Sun, 2015) <http://www.thesun.co.uk/sol/homepage/news/politics/6758207/1-in-5-British-Muslims-have-sympathy-for-jihadisin-poll.html.> accessed 17 January 2016. 52 Katy Sian, ‘The Limits of Representation: Muslims and the News Media’ in Katy Sian, S. Sayyid and Ian Law Racism, Governance, and Public Policy: Beyond Human Rights (Routledge 2013), 115. 53 Stephen Morton, States of Emergency: Colonialism, Literature and Law (Liverpool University Press 2013), 212. 54 (n 2), s 40(4A)(a). 55 Jim Pickard and George Parker, ‘Terror suspects face being made stateless under May amendment’ (The Financial Times 2014) <http://www.ft.com/cms/s/0/4430cff8-890e-11e3-bb5f00144feab7de.html#axzz3xVhCJSrQ> accessed 17 January 2016; Helen Warrell and Jim Pickard, ‘May bids to make terror suspects stateless’ (The Financial Times 2013) <http://www.ft.com/cms/s/0/1cf6beee-4afb-11e3-ac3d00144feabdc0.html#axzz3xVhCJSrQ> accessed 17 January 2016. 56 UN Convention on the Reduction of Statelessness 1961, Article 8(1). 57 Theresa May, ‘Theresa May: Speech to Conservative Party Conference 2014’ (Conservatives 2014) <http://press.conservatives.com/post/98799073410/theresa-may-speech-to-conservative-party> accessed 17 January 2016, [17]. 47

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Because of the human rights breaches stemming from statelessness, the UN enacted the Convention Relating to the Status of Stateless Persons58 in order to define statelessness and provide those falling within the definition with a minimum level of protection of their fundamental rights.59 Under Article 1 of the 1954 Convention, a person who is not considered as a national by any State under the operation of its law is deemed to be stateless. While this definition prima facie can be praised for its simplicity, its wording permits a dangerous conflation between those who have citizenship status and enjoy all of the rights that come with it, and those who have citizenship status in legal terms but are unable to exercise the rights which are inherent to any account of rights-based citizenship. The UN recognises those falling in the latter category,60 who have come to be known as having de jure citizenship, but de facto statelessness. De facto statelessness is a controversial term when describing those 'who formally possess a nationality but where it is ineffective,'61 due to the lack of definitional certainty62 and the tendency to regard those persons as not falling within the remit of the 1954 Convention.63 Harvey is therefore right to suggest that use of de facto statelessness be eschewed and ‘stateless’ be extended to cover both categories.64 A debate over terminology is counter-productive where it is possible to ascertain in practical terms someone’s statelessness through other means. 65 However, the terminology is still widely in use, even by the Supreme Court (UKSC) in Pham.66 The need for the law to protect the de facto stateless is hard to reconcile with the de jure focus of the 1954 Convention, which accepts statelessness only as a result of an operation of law.67 This means that the protection provided for in the UN’s 1961 Convention on the Reduction of Statelessness, 68 which imposes positive obligations 69 upon states to grant nationality to the stateless, may not be afforded to those who need it.

UN Convention Relating to the Status of Stateless Persons (1954). Guy Goodwin-Gill, ‘Foreword: Convention Relating to the Status of Stateless Persons’ (United Nations Audio Visual Library of international Law, 2010). <http://legal.un.org/avl/pdf/ha/cssp/cssp_e.pdf> accessed 7 March 2016, 5. 60 UNHCR, ‘Handbook on Protection of Stateless Persons’ (UNHCR 2014) <http://www.unhcr.org/53b698ab9.html> accessed 8 March 2016. 61 Alison Harvey, ‘Statelessness: The 'de facto' Statelessness Debate’ (2011) Journal of Immigration, Asylum and Nationality Law (2011) 24 (3) 257, 261. 62 Laura van Waas, Nationality Matters: Statelessness Under International Law (Intersentia 2008), 27. 63 UNHCR, ‘The Concept of Stateless Persons under International Law’ (UNHCR 2010). <http://www.unhcr.org/4cb2fe326.html> accessed 8 March 2016, 5. 64 Alison Harvey, ‘The UK's New Statelessness Determination Procedure in Context’ Journal of Immigration, Asylum and Nationality Law (2013) 27 (4) 294, 297. 65 See, Home Office (n40). 66 Pham (n10), 21. 67 Harvey (n 65), 259. 68 (n 56). 69 ibid, Article 1. 59

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5. THE CHANGING LEGAL POSITION IN THE UK: IS STATELESSNESS EVER PERMISSIBLE? Despite the 1961 Convention’s obligations, to this day, the UN believes that there are up to 10 million stateless persons in dozens of countries.70 The UK has ratified both conventions, yet hundreds of stateless people in the UK are currently vulnerable to human rights infringements, although it is often hard to identify those in need.71 It is worth noting here that there are two differing approaches taken by the UK government towards statelessness. On the one hand it has been praised by the UNHCR72 for its guidance73 in facilitating the nationalisation of the stateless. On the other, the reforms of s66 IA make a deprivation of citizenship order permissible even where a person may be made stateless. 74 The policy justification for this is the desire to accommodate ‘legitimate migrants’ whilst being ‘tougher’ on those who the Home Secretary deems as having no right to be there.75 National security reasons are often the justification;76 by stripping a person of their citizenship, the government is able to deport them back to their country of origin.77 Cases such as the Abu Qatada controversy78 have fueled the political desire to do this, as for years the government could not deport the cleric for fear of evidence obtained by torture being used against him.79 This would have constituted a breach of his Article 6 ECHR rights, the right to a fair trial, which is one of the civil rights deemed essential for citizenship by Marshall. The two cases below demonstrate the changing legal positions relating to such orders. It shall be argued that irrespective of the narrow ambit of recent developments, the shift constitutes an erosion of the fundamental protections that citizenship is supposed to confer. A. AL-JEDDA The case of Al-Jedda concerns an Iraqi who, after claiming asylum in the UK in 1992, was granted British citizenship. In doing so, he lost his Iraqi citizenship. Due to suspicions of terrorist links, he was deprived of his British citizenship by the Home Secretary under s40(2) BNA. The 70

UNHCR, ‘Ending Statelessness’ (UNHCR, 2010) <http://www.unhcr.org/pages/49c3646c155.html> accessed 7 March 2016. 71 UNHCR, ‘Mapping Statelessness in The United Kingdom’ (UNHCR 2010) <http://www.unhcr.org.uk/fileadmin/user_upload/images/Updates/November_2011/UNHCR-Statelessness_in_UKENG-screen.pdf> accessed 8 March 2016, 7, 58-59. 72 UNHCR, ‘UNHCR hails move by United Kingdom to end legal limbo for stateless people’ (UNHCR 2013) <http://www.unhcr.org/5163ec646.html> accessed 8 March 2016. 73 Home Office (n 40). 74 (n 2), s 40(4A)(b)-(c); Melanie Gower, ‘Deprivation of British citizenship and withdrawal of passport facilities’ (Parliament 2015) <http://researchbriefings.files.parliament.uk/documents/SN06820/SN06820.pdf> accessed 8 March 2016. 75 Declan O'Callaghan, ‘Creating a hostile environment - the Act as a weapon’ (Landmark Chambers 2015) <http://www.landmarkchambers.co.uk/userfiles/documents/resources/DOC%20Immigration%20Act.pdf> accessed 8 March 2016, 2. 76 Victoria Parsons, ‘Government release number deprived of British citizenship since 2013’ (The Bureau of Investigative Journalism 2014) <https://www.thebureauinvestigates.com/2014/12/19/government-release-numberdeprived-of-british-citizenship-since-2013/> accessed 8 March 2016. 77 Gower (n 75), 9. 78 Othman (Abu Qatada) v. the United Kingdom, App no 8139/09 (ECtHR 9 May 2012). 79 BBC, ‘'Unacceptable' UK can't deport Abu Qatada - Theresa May’ (BBC 2012): <http://www.bbc.co.uk/news/ukpolitics-16923527> accessed 8 March 2016.

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issue for the Court was whether the deprivation rendered the appellant stateless, or whether it was his failure to make an application for citizenship under the new Iraqi law that did so.80 The UKSC found for the former, with the latter being dubbed ‘illogical’81 on the basis that at the time of the deprivation order, the appellant only had British nationality. This conclusion echoes the Court of Appeal’s (CA) previous decision and is a ‘straightforward’82 application of s40(4) in the light of the court’s interpretation of the Iraqi law. While this part of the judgment is a simple application of the law, of note is Lord Wilson’s ethics-based statement on the ‘evil of statelessness.’83 He cites the same historical examples as above, as well as its legal basis in the UN Conventions. It is argued that both the Court’s moral position and the characterisation of the Home Secretary’s actions as fallacious84 are to be welcomed. This is because the premise behind the Home Secretary’s argument, that Al-Jedda could have applied to Iraqi authorities for restoration of his nationality,85 is wrong on the facts. The wording of the Iraqi law was such that the state’s decision for restoration of nationality would be discretionary.86 The result is that he would be at the mercy of an administration unlikely to grant citizenship to a terror suspect. It can thus be argued that the Home Secretary’s move to deprive Al-Jedda’s citizenship constituted an attempt to ‘pass the buck’ of the UK Government’s responsibilities in relation to his detention onto the Iraqi administration, with little regard to the consequences.87 Al-Jedda had a key role in subsequent reforms; the Court’s decision lead to a backlash from the Government, with David Cameron threatening any judgment against “operation of [the government’s] existing powers”88 with legislation that will override their decision. This backlash can be attributed in part to the rise of ISIS and those British citizens who have gone to Syria to fight for them.89 In the debates leading up to the IA’s reforms, Al-Jedda’s name was mentioned eleven times90 in order to justify the broadening of s40 BNA. This is despite the fact that by this point, the Home Secretary had already issued another deprivation order against him.91 This illustrates how a broadening of s40 BNA may not be necessary, and Theresa May’s failure to disclose this to the Commons can be criticised as being in bad faith.92 Nevertheless, the IAs reforms came into force in July 2014, adding s40(4A) to the BNA. 80

Al Jedda (n 9), [1]. ibid, [32]. 82 Al Jedda v SSHD [2012] EWCA 358, [121] (Richards LJ). 83 Al Jedda (n 9), [12]. 84 ibid, [34]. 85 ibid, [23]. 86 ibid, [25]. 87 Gibney (n 7), 39. 88 David Cameron, ‘PM statement on European Council and Tackling extremism’ (Prime Minister’s Office, 2014) <https://www.gov.uk/government/speeches/pm-statement-on-european-council-and-tackling-extremism> accessed 6 January 2016. 89 I bid. 90 Alice Ross and Olivia Rudgard, ‘Al Jedda: the man mentioned 11 times by Home Office as it tried to change Immigration Bill’ (The Bureau of Investigative Journalism 2014) <https://www.thebureauinvestigates.com/2014/07/11/al-jedda-the-man-mentioned-11-times-by-home-office-as-ittried-to-change-immigration-bill/> accessed 6 January 2016. 91 BBC, ‘Terror suspect Hilal Al-Jedda stripped of UK citizenship’ (BBC 2013) <http://www.bbc.co.uk/news/uk25190305> accessed 6 January 2016. 92 Alison Harvey, ‘Recent Developments on Deprivation of Nationality on Grounds of National Security and Terrorism Resulting in Statelessness’ Journal of Immigration, Asylum and Nationality Law (2013) 28 (4) 336, 346. 81

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B. PHAM The case of Pham (previously B2)93 was ongoing while the IA was developing and so its reforms did not apply. However, it is relevant to the UK’s obligations surrounding statelessness. The facts are comparable to Al-Jedda; Pham was born in Vietnam but later became a British citizen. He was alleged to have been trained by Al Qaeda, and the Home Secretary made a deprivation order. The main difference between the facts of the two cases is that Pham never formally renounced his Vietnamese citizenship, 94 and when the Vietnamese government discovered the UK’s intention to deport him they “declined to accept that he was or is a Vietnamese national.”95 Such a refusal was contrary to Vietnamese law; after extensive evidence being heard, Jackson LJ in the CA felt that the law was ‘tolerably clear’ and that Pham was still a Vietnamese citizen.96 The issue was, if under Art 1(1) of the 1954 Convention, Pham had been made stateless by the Home Secretary’s order. A key part of answering this was whether the Vietnamese government’s actions, which rode “roughshod over its own law,”97 constituted an operation of law for the purposes of Art 1(1). If the answer was no, a further issue was whether a deprivation of citizenship, which would have entailed loss of EU citizenship, was within the ambit of EU law and thus subject to the test of proportionality.98 Lord Carnwath gave the leading judgment, dismissing Pham’s appeal, with concurring opinions from Lords Mance, Sumption and Reed. While this paper is primarily concerned with British citizenship issues, the interpretation of EU citizenship had the potential to realise a ‘whole spectrum’ of rights and their connection to nationality.99 This is because European citizenship rights, such as the freedom of movement, are contingent upon having nationality of an EU member state. If the UK government revoking British citizenship were held disproportionate, EU law-based claims could prove to be the most effective avenue through which dual nationals may retain British citizenship rights. Majid100 expressed this hope in 2008 in response to s56(1) of the Immigration, Asylum and Nationality Act 2006, which was the first time that the ‘conducive to the public good’ test applied in this context. However, the UKSC refused to rule explicitly on the matter and referred it back to the Special Immigration Appeals Commission. The reservations on the applicability of EU law expressed by Lords Mance and Sumption,101 combined with the UK’s future exit from the EU mean that it is unlikely that Majid’s hopes will be realised.

B2 v Secretary of State for the Home Department [2013] EWCA Civ 616. Pham (n 10) [2]. 95 ibid, [66] (Lord Mance). 96 B2 (n 94), [88]. 97 ibid. 98 Pham (n 10) [31]. 99 Prabhat (n 20), 12. 100 Hina Majid, ‘Protecting the Right to Have Rights: The Case of Section 56 of the Immigration, Asylum and Nationality Act 2006’ Journal of Immigration, Asylum and Nationality Law (2008) 22 (1) 27. 101 Pham (n 10) [111]. 94

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6. THE UNHELPFUL DISTINCTION BETWEEN DE JURE AND DE FACTO STATELESSNESS Lord Carnwath’s argument, in rejecting Pham’s appeal, turned on whether it is the formal content of Vietnamese law that should be used in determining nationality, or whether ‘operation of law’ should be taken to include the ‘practice of the government to make decisions which cannot be challenged’ in the courts.102 This can be boiled down to considerations of de jure and de facto statelessness. Jackson LJ in the CA, unable at the time to benefit from the UNHRC’s 2014 guidance103 on the interpretation of statelessness, explicitly excluded de facto statelessness from the remit of Art 1(1) of the 1954 Convention.104 The guidance suggests that often a person’s nationality is a ‘mixed question of fact and law,’105 and for this reason counsel for Pham argued that it was what happened in practice rather than the letter of the law that should be taken into account.106 Lord Carnwath considered the UNHRC’s revised interpretation, but like Harvey above found it hard to reconcile with Art 1(1) of the 1954 Convention.107 He could not see how the Vietnamese government’s decision not to acknowledge Pham’s nationality could be an ‘operation of law.’108 Lord Sumption had different reasoning. As Pham unquestionably had Vietnamese citizenship at the time of his birth, and as Vietnam had done nothing to revoke it by the date of the Home Secretary’s deprivation order, Lord Sumption felt that he must still have had Vietnamese citizenship unless ‘something had happened to take it away.’109 As nothing had taken the status away, he suggested that if Pham had been rendered stateless, it was by Vietnam and not the Home Secretary.110 The UK government, notwithstanding Pham’s extradition to the USA,111 is now able to pass the buck of its responsibilities onto Vietnam. There are policy considerations for this. For example, if the Court quashed the order and held that the Home Secretary had rendered Pham stateless, it could encourage the retroactive removal of citizenship by countries with a ‘cavalier attitude to citizenship.’112 Furthermore, accommodating Pham and others like him would incur costs to the taxpayer. However, it is argued that this consideration should not trump Pham’s human rights, especially as on the facts, these cases are unlikely to occur regularly. One of the UK’s leading nationality lawyers, Guy Goodwin-Gill, goes as far as to call the government’s refusal to accept that other states can unilaterally denationalise their citizens as ‘manifestly incorrect.’113 Vietnam has a poor record concerning the protection of the stateless114 and an even 102

ibid, [31]. UNHRC (n 64). 104 B2 (n 97), [28]. 105 UNHRC (n 64), 12. 106 Pham (n 10), [33]. 107 ibid, [28]. 108 ibid, [38]. 109 ibid, [101]. 110 ibid. 111 Victoria Parsons, ‘Man stripped of British citizenship pleads not guilty to al Qaeda terror charges in New York’ (The Bureau of Investigative Journalism 2015) <https://www.thebureauinvestigates.com/2015/03/04/man-strippedof-british-citizenship-pleads-not-guilty-to-al-qaeda-terror-charges-in-new-york/> accessed 8 March 2016. 112 Simon Cox, ‘Case Watch: UK Supreme Court Backs Government Rejection of Statelessness Claim’ (Open Society Foundations 2015) <https://www.opensocietyfoundations.org/voices/case-watch-uk-supreme-court-backsgovernment-rejection-statelessness-claim> accessed 8 March 2016. 113 Goodwin-Gill (n 33), 12. 103

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worse one regarding protection of prisoners’ human rights.115 It thus seems likely that were Pham to be deported, the rights contingent on citizenship would be infringed. The infringements could be so grave as to impact unqualified rights such as the right to life116 and the right not to be tortured.117 Irrespective of whether Pham had de jure Vietnamese nationality it is argued that he would be de facto stateless; he would not be able to enjoy the protection citizenship normally affords. As such, the UKSC’s finding that Pham retained Vietnamese nationality is of no consequence to him as the harms that the UN Conventions were trying to mitigate would still occur. The importance placed on de jure citizenship, a status shown to be a convenient legal fiction, is a serious defect of Art 1(1), which the UNHRC has failed to rectify in practice. 7. AN ALTERNATIVE AVENUE FOR RIGHTS PROTECTION? While Pham could endorse the notion of compromised rights protection where state standards differ, the opinions of Lords Mance,118 Sumption, and Reed offer a glimmer of hope. They put forward an approach to legal protection of British citizenship based on ECHR rights as codified by the Human Rights Act 1998. Most thorough is Lord Sumption’s engagement with the jurisprudence on proportionality in the UK,119 an area separate to EU law. He acknowledges the existence of a ‘sliding scale’120 of rights; the ‘cogency of the justification required for interfering with a right’ must be proportionate to the importance of the right and the extent of the interference with it.121 With this acknowledgment he states that, without categorically prioritising certain rights, there are some concerns that are ‘weightier’122 than others and that interference with some may outweigh the Home Secretary’s justifications. He explicitly regards issues concerning, for example, the right to life123 and the right to nationality124 as being examples of where the weight of human rights considerations against the Home Secretary’s rationales could fall in Pham’s favour. Similarly, Lord Reed suggests that as citizenship is of ‘fundamental importance,’ it may be arguable that depriving a citizen of that status should be interpreted with an implied requirement of being necessary to achieve a legitimate aim,125 a requirement that he calls in substance one of proportionality.126 Furthermore, while Lady Hale did not contribute an opinion, she agreed with those of Lords Mance and Sumption. This, in light of her extrajudicial

114

The International Observatory on Statelessness, ‘Vietnam’ (Nationality for All 2015) <http://www.nationalityforall.org/vietnam> accessed 8 March 2016; UNHCR, ‘2015 UNHCR subregional operations profile - South-East Asia’ (UNHCR 2015) <http://www.unhcr.org/pages/49e4899d6.html> accessed 8 March 2016. 115 Human Rights Watch, ‘World Report 2015: Vietnam’ (Human Rights Watch 2015) <https://www.hrw.org/worldreport/2015/country-chapters/vietnam> accessed 8 March 2016. 116 ECHR, Article 2. 117 ECHR, Article 3. 118 Pham (n 10) [97]. 119 See, R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 (Lord Steyn). 120 Pham (n 10), [106]. 121 ibid. 122 ibid, [108]. 123 ibid. 124 ibid; ECHR Art 8. 125 ibid, [120]. 126 ibid, [119].

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views127 on the judiciary’s jurisdiction to protect fundamental rights even if it entails a limit on Parliament’s power, could herald the possibility of a human rights argument being favoured over the authority of s40(4A) BNA.128 Notwithstanding the fact that the judges refuse to decide on proportionality, Prabhat suggests that their opinions may show the Court’s willingness to consider British citizenship as being ‘attached’ to human rights protection.129 The development of this would mean that the courts may maintain the ‘common thread’ of fundamental rights protection and domestic connection, even if only to a minimal extent and without embracing the spectrum of citizenship rights posited by Marshall.130 8. THE CONSEQUENCES FOR BRITISH CITIZENSHIP The government has been able to sidestep citizenship-stripping issues in its use of prerogative powers in order to effectuate what has been described as ‘statelessness light.’131 Not every British citizen is entitled to a passport,132 however it is evidence of British nationality133 and has a key role in securing one of the rights associated with British citizenship - the ability to return to the UK.134 The Counter-Terrorism and Security Act 2015 (CTSA) seeks to put the prerogative powers involved in seizing and invalidating passports on statutory footing and make it easier to seize them in ports.135 The discretion afforded here is broad; under s1(1) CTSA, passports or travel documents of any person (including natural born citizens) may be seized if the person is suspected of intending to leave the UK in connection with terrorism-related activity. It is not necessarily easy to establish reasonable grounds for that suspicion. The guidance on it merely states that it is a case-by-case matter and that police officers should not be prejudiced in exercising this discretion.136 The check on this power is a chain of authority that must approve of the seizure as time goes by.137 It is unclear how likely it is in practice for a superior to overturn a constable’s decision to seize documents. More intrusive than the passport-stripping powers is s2 CTSA, which allows the Home Office to make a Temporary Exclusion Order (TEO) to stop a person from being allowed back into the UK if certain conditions138 are met. This could mean that citizens are stranded in countries where 127

Brenda Hale, ‘The Supreme Court in the United Kingdom Constitution’ (The Supreme Court 2015) <https://www.supremecourt.uk/docs/speech-150205.pdf> accessed 8 March 2016, 11. 128 Cox (n 113). 129 Prabhat (n 20), 12. 130 ibid. 131 Harvey (n 93), 347. 132 Gower (n 75), 7. 133 Goodwin-Gill (n 33), 1. 134 Guy Goodwin-Gill, ‘Mr Al-Jedda, Deprivation of Citizenship, and International Law’ (Parliament 2014) <http://www.parliament.uk/documents/joint-committees/human-rights/GSGG-DeprivationCitizenshipRevDft.pdf> accessed 8 March 2016,12. 135 Counter Terrorism and Security Act 2015, s 1 & Sch 1. 136 Home Office, ‘Code of Practice for Officers exercising functions under Schedule 1 of the Counter-Terrorism and Security Act 2015 in connection with seizing and retaining travel documents’ (Home Office 2015) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/403643/9781474115384.pdf> accessed 8 March 2016, 8. 137 Home Office, ‘Factsheet – Part 1 Chapter 1 – Temporary Passport Seizure’ (Home Office 2015) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/382245/CTS_Bill_-_Factsheet_2__Passport_Seizure.pdf> accessed 8 March 2016, 2. 138 CTSA (n 135) ss2(3)-(7).

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their safety is at risk. The TEO conditions are based once again on reasonable belief considerations such as that the person is suspected of being involved in terrorism-related activity.139 The only check on this discretion is provided for in s3, which allows a court to strike down a TEO if it finds the Home Secretary’s reasoning ‘obviously flawed.’140 Section 3(3) CTSA allows these rulings to be made without the person’s presence or knowledge that the proceedings are taking place. As such, they have no ability to challenge the Home Office’s reasoning, so the courts are more likely to rule in the Home Office’s favour. These powers have the potential to be exercised arbitrarily and without challenge, especially considering that historically, the majority of situations where an official has claimed ‘reasonable suspicion’ have not met an acceptable standard of proof.141 As a result of these reforms, not only is it possible for British citizens to suffer from the effects de facto statelessness when they are stuck abroad, they may be innocent of the crimes that they are accused of.142Therefore, the operation of the CTSA has the potential to constitute an attack on the substance of British citizenship. 9. CONCLUSIONS The developments in UK law concerning deprivation of citizenship have, to varying degrees, constituted an attack on the rights that are intrinsic to British citizenship. The government can now render British citizens stateless, and thus legal position on citizenship has moved away from the position that ‘true’ British citizenship must necessarily entail the protection of rights. Rights, as Mills notes, are beginning to depend on something ‘other’143 than citizenship. As history has shown us, this shift should be taken very seriously. What this paper has not sought to do is rigorously engage with the political, non-legal arguments surrounding whether the curtailment of some rights is justified in light of the threats posed by terrorist organisations like ISIS. The concept that citizenship is a privilege and not a right is not new,144 and has been used to argue that terrorists repudiate their own citizenship by their actions.145 Alternatively, there is a body of work, most notably by Matthew Gibney,146 which questions the efficacy and ethics of denationalisation as a weapon. The use of draconian 139

ibid, s2(3). ibid, s3(2). 141 Liberty, ‘Liberty’s second reading briefing on the Counter-Terrorism and Security Bill in the House of Commons’ (Liberty 2014) <https://www.liberty-humanrights.org.uk/sites/default/files/Liberty's%20Second%20Reading%20Briefing%20on%20the%20CounterTerrorism%20%26%20Security%20Bill%20in%20the%20House%20of%20Commons.pdf> accessed 8 March 2016, 6. 142 Harvey (n 93), 354. 143 Bobbie Mills, ‘A privilege, not a right": Contemporary debates on citizenship deprivation in Britain and France’ (Compas 2016) <https://www.compas.ox.ac.uk/media/WP-2016-130-Mills-Privilege-Right.pdf> accessed 8 March 2016, 24. 144 Derek Heater, Citizenship: The Civic Ideal in World History, Politics and Education, (3rd edn, Manchester University Press 2004), 77. 145 Christian Joppke, ‘Terrorists repudiate their own citizenship’ in Audrey Macklin and Rainer Bauböck, The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? (European University Institute, 2015). 146 See, for example, Matthew Gibney, ‘Boundaries of belonging: deportation and the constitution and contestation of citizenship’ Citizenship Studies (2011) 15 (5) 543; ‘A Very Transcendental Power: Denaturalisation and the Liberalisation of Citizenship in the United Kingdom’ Political Studies (2013) 61 (3) 637; ‘Should Citizenship Be Conditional? The Ethics of Denationalization’ Journal of Politics (2013) 75 (3) 646. 140

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measures such as citizenship-stripping of foreign-born citizens is creeping into areas other than national security.147 This raises concerns of a slippery slope whereby a two-tier system of citizenship separates the ‘UK-born’ and ‘foreigners,’ affording citizenship rights protection only to the former category.148 The Foreign National Offenders (Exclusion from the United Kingdom) Bill, 149 would have allowed the deportation of any foreign national found guilty of an imprisonable crime, which could be as minor of an offence as graffiti.150.While it was a Private Member’s Bill and was withdrawn after the second reading, it demonstrates a political impetus to create a separation based on provenance. This is not to be welcomed. As Lord Hoffmann memorably observed in relation to arbitrary powers discriminating between foreign-born and UK-born citizens, “such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.”151

147

Cusick (n 8). Nesrine Malik, ‘Stripping criminals of their UK passports – even terrorists and sex abusers – is dangerous’ (Guardian 2016) <http://www.theguardian.com/commentisfree/2016/mar/01/stripping-criminals-uk-citizenshipracisrt-sex-abusers-terrorists-two-classes-citizens?CMP=share_btn_tw> accessed 13 March 2016. 149 Foreign National Offenders (Exclusion from the United Kingdom) Bill 2014-15. 150 Criminal Damage Act 1971, s 1(1). 151 A and others v Secretary of State for the Home Department; X and another v Secretary of State for the Home Department [2004] UKHL 56, [96]. 148

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Primary Sources Legislation/Treaties British Nationality Act 1981. Counter Terrorism and Security Act 2015. Criminal Damage Act 1971. European Convention on Human Rights UN Convention on the Reduction of Statelessness 1961. UN Convention Relating to the Status of Stateless Persons 1954. Universal Declaration of Human Rights 1948. Cases Al Jedda v SSHD [2012] EWCA 358, [121] (Richards LJ). <http://www.unhcr.org/4cb2fe326.html> accessed 8 March 2016, 5. A and others v Secretary of State for the Home Department; X and another v Secretary of State for the Home Department [2004] UKHL 56, [96]. AA (Somalia) v Entry Clearance Officer [2013] UKSC 81; Agardi v Penitentiary Judge of the Metropolitan Court, Budapest, Hungary [2014] EWHC 3433 (Admin). B2 v Secretary of State for the Home Department [2013] EWCA Civ 616. Genovese v Malta App no 53124/09 (ECtHR,11 October 2011). Othman (Abu Qatada) v. the United Kingdom, App no 8139/09 (ECtHR 9 May 2012). Pham v Secretary of State for the Home Department [2015] UKSC 19. R (Daly) v Secretary of State for the Home Department [2001] UKHL 26. R (on the application of Ali) v Secretary of State for the Home Department [2015] UKSC 68. R (on the application of Bibi) v Secretary of State for the Home Department [2015] UKSC 68.

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Secretary of State for the Home Department v Al Jedda [2013] UKSC 62. Secondary Sources Books Arendt H, The Origins of Totalitarianism (2nd edn, The World Publishing Company 1951). Aristotle, Politics, Book III (tr) Trevor Saunders (Penguin 1981). Benhabib S, The Rights of Others: Aliens, Residents and Citizens (CUP 2004). Fransman L, British Nationality Law and the 1981 Act (Fourmat Publishing 1982). -- Fransman's British Nationality Law (3rd edn, Bloomsbury Professional 2011). Heater D, Citizenship: The Civic Ideal in World History, Politics and Education, (3rd edn, Manchester University Press 2004). Marshall T, Citizenship and Social Class (CUP 1950). Morton S, States of Emergency: Colonialism, Literature and Law (Liverpool University Press 2013). van Waas L, Nationality Matters: Statelessness Under International Law (Intersentia 2008). Articles Byren A, ‘Judging Empire: Courts And Culture in Rome's Eastern Provinces’ Law and History Review 30 (3) 771. Gibney ‘A Very Transcendental Power: Denaturalisation and the Liberalisation of Citizenship in the United Kingdom’ Political Studies (2013) 61 (3) 637. -- ‘Should Citizenship Be Conditional? The Ethics of Denationalization’ Journal of Politics (2013) 75 (3) 646. -- ‘Boundaries of belonging: deportation and the constitution and contestation of citizenship’ Citizenship Studies (2011) 15 (5) 543. Harvey A, ‘Recent Developments on Deprivation of Nationality on Grounds of National Security and Terrorism Resulting in Statelessness’ Journal of Immigration, Asylum and Nationality Law (2013) 28 (4) 336. -- ‘Statelessness: The 'de facto' Statelessness Debate’ (2011) Journal of Immigration, Asylum and Nationality Law (2011) 24 (3) 257.

BLR Vol 4

181

-- ‘The UK's New Statelessness Determination Procedure in Context’ Journal of Immigration, Asylum and Nationality Law (2013) 27 (4) 294, 297. Majid H, ‘Protecting the Right to Have Rights: The Case of Section 56 of the Immigration, Asylum and Nationality Act 2006’ Journal of Immigration, Asylum and Nationality Law (2008) 22 (1) 27. Prabhat D, ‘Deprivation Judgments on the Meaning of British Citizenship: A Socio-Legal Analysis’ (Draft version cited with permission 2015). Sawyer C, and Blitz B, ‘De facto statelessness in the United Kingdom’ in Sawyer C, and Blitz B, (eds) Statelessness in the European Union (CUP 2011). Sian K, ‘The Limits of Representation: Muslims and the News Media’ in Katy Sian, S. Sayyid and Ian Law Racism, Governance, and Public Policy: Beyond Human Rights (Routledge 2013), 115. Other Sources Anderson B, ‘Citizenship: What Is It and Why Does It Matter?’ (The Migration Observatory, 28 March 2011) <http://www.migrationobservatory.ox.ac.uk/sites/files/migobs/Citizenship%20Policy%20Primer. pdf> accessed 14 January 2016. BBC, ‘'Unacceptable' UK can't deport Abu Qatada - Theresa May’ (BBC 2012): <http://www.bbc.co.uk/news/uk-politics-16923527> accessed 8 March 2016. BBC, ‘Terror suspect Hilal Al-Jedda stripped of UK citizenship’ <http://www.bbc.co.uk/news/uk-25190305> accessed 6 January 2016.

(BBC

2013)

Brione P, ‘Statement on Survation’s Poll of Muslims for The Sun’ <http://survation.com/statement-on-survations-poll-of-muslims-for-the-sun/> (Survation, 2015) 17 January 2016. Cameron D, ‘PM statement on European Council and Tackling extremism’ (Prime Minister’s Office, 2014) <https://www.gov.uk/government/speeches/pm-statement-on-european-counciland-tackling-extremism> accessed 6 January 2016. . Cox S, ‘Case Watch: UK Supreme Court Backs Government Rejection of Statelessness Claim’ (Open Society Foundations 2015) <https://www.opensocietyfoundations.org/voices/case-watchuk-supreme-court-backs-government-rejection-statelessness-claim> accessed 8 March 2016.

BLR Vol 4

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Cusick J, ‘Asian sex abusers to be stripped of UK citizenship and deported’ (Independent, 25 February 2016) <http://www.independent.co.uk/news/uk/crime/asian-sex-abusers-to-be-strippedof-uk-citizenship-and-deported-a6896051.html> accessed 7 March 2016. Ealing Law Centre ‘Systemic Obstacles to Children's Registration as British Citizens’ (PRCBC, 2014) <https://prcbc.wordpress.com/research/> accessed 13 January 2016. Foreign National Offenders (Exclusion from the United Kingdom) Bill 2014-15. Gibney M, ‘Beware States Piercing Holes into Citizenship’ in Audrey Macklin and Rainer Bauböck, The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? (European University Institute, 2015). Goodwin-Gill G, ‘Deprivation of Citizenship, Statelessness, and International Law - More Authority (if it were needed...)’ (Parliament, 2014) <http://www.parliament.uk/documents/jointcommittees/human-rights/GSGG-DeprivationCitizenship-MoreAuthority.pdf> accessed 14 January 2016. -- ‘Foreword: Convention Relating to the Status of Stateless Persons’ (United Nations Audio Visual Library of international Law, 2010). <http://legal.un.org/avl/pdf/ha/cssp/cssp_e.pdf> accessed 7 March 2016. -- ‘Mr Al-Jedda, Deprivation of Citizenship, and International Law’ (Parliament 2014) <http://www.parliament.uk/documents/joint-committees/human-rights/GSGGDeprivationCitizenshipRevDft.pdf> accessed 8 March 2016. Gower M, ‘Deprivation of British citizenship and withdrawal of passport facilities’ (Parliament 2015) <http://researchbriefings.files.parliament.uk/documents/SN06820/SN06820.pdf> accessed 8 March 2016. Hale B, ‘The Supreme Court in the United Kingdom Constitution’ (The Supreme Court 2015) <https://www.supremecourt.uk/docs/speech-150205.pdf> accessed 8 March 2016. Hann M, ‘Recognising Recognition: Hannah Arendt on (the Right to Have) Rights’ (Political Studies Association, 2013) <https://www.psa.ac.uk/sites/default/files/988_509.pdf> accessed 13 March 2016. HM Government, ‘National curriculum in England: citizenship programmes of study for key stages 3 and 4’ (HM Government, 2013) <https://www.gov.uk/government/publications/nationalcurriculum-in-england-citizenship-programmes-of-study/national-curriculum-in-englandcitizenship-programmes-of-study-for-key-stages-3-and-4> accessed 1 January 2016. Home Office, ‘Asylum Policy Instruction: Statelessness and applications for leave to remain’ (Home Office, 2016) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/501509/Stateless ness_AI_v2.0__EXT_.pdf> accessed 7 March 2016.

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-- ‘Code of Practice for Officers exercising functions under Schedule 1 of the Counter-Terrorism and Security Act 2015 in connection with seizing and retaining travel documents’ (Home Office 2015) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/403643/9781474 115384.pdf> accessed 8 March 2016, 8. -- ‘Confirmation of British Nationality Status’ (Home Office, June 2014) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/322367/GUIDE _NS_-_June_2014-update.pdf> accessed 7 March 2016. -- ‘Factsheet – Part 1 Chapter 1 – Temporary Passport Seizure’ (Home Office 2015) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/382245/CTS_Bil l_-_Factsheet_2_-_Passport_Seizure.pdf> accessed 8 March 2016, 2. Human Rights Watch, ‘World Report 2015: Vietnam’ (Human Rights Watch 2015) <https://www.hrw.org/world-report/2015/country-chapters/vietnam> accessed 8 March 2016. Immigration Act 1971, s 2(1)(a). Joppke C, ‘Terrorists repudiate their own citizenship’ in Audrey Macklin and Rainer Bauböck, The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? (European University Institute, 2015). Liberty, ‘Liberty’s second reading briefing on the Counter-Terrorism and Security Bill in the House of Commons’ (Liberty 2014) <https://www.liberty-humanrights.org.uk/sites/default/files/Liberty's%20Second%20Reading%20Briefing%20on%20the%20 CounterTerrorism%20%26%20Security%20Bill%20in%20the%20House%20of%20Commons.pdf> accessed 8 March 2016. Malik N, ‘Stripping criminals of their UK passports – even terrorists and sex abusers – is dangerous’ (Guardian 2016) <http://www.theguardian.com/commentisfree/2016/mar/01/stripping-criminals-uk-citizenshipracisrt-sex-abusers-terrorists-two-classes-citizens?CMP=share_btn_tw> accessed 13 March 2016. May T, ‘Theresa May: Speech to Conservative Party Conference 2014’ (Conservatives 2014) <http://press.conservatives.com/post/98799073410/theresa-may-speech-to-conservative-party> accessed 17 January 2016, [17]. Mills B, ‘A privilege, not a right": Contemporary debates on citizenship deprivation in Britain and France’ (Compas 2016) <https://www.compas.ox.ac.uk/media/WP-2016-130-MillsPrivilege-Right.pdf> accessed 8 March 2016. Newton Dunn T, ‘1 in 5 Brit Muslims’ sympathy for jihadis’ (The Sun, 2015) <http://www.thesun.co.uk/sol/homepage/news/politics/6758207/1-in-5-British-Muslims-havesympathy-for-jihadis-in-poll.html.> accessed 17 January 2016.

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O'Callaghan D, ‘Creating a hostile environment - the Act as a weapon’ (Landmark Chambers 2015) <http://www.landmarkchambers.co.uk/userfiles/documents/resources/DOC%20Immigration%20 Act.pdf> accessed 8 March 2016. Parsons V, ‘Government release number deprived of British citizenship since 2013’ (The Bureau of Investigative Journalism 2014) <https://www.thebureauinvestigates.com/2014/12/19/government-release-number-deprived-ofbritish-citizenship-since-2013/> accessed 8 March 2016. -- ‘Man stripped of British citizenship pleads not guilty to al Qaeda terror charges in New York’ (The Bureau of Investigative Journalism 2015) <https://www.thebureauinvestigates.com/2015/03/04/man-stripped-of-british-citizenship-pleadsnot-guilty-to-al-qaeda-terror-charges-in-new-york/> accessed 8 March 2016. Pickard J, and Parker G, ‘Terror suspects face being made stateless under May amendment’ (The Financial Times 2014) <http://www.ft.com/cms/s/0/4430cff8-890e-11e3-bb5f00144feab7de.html#axzz3xVhCJSrQ> accessed 17 January 2016. Ross A and Rudgard O, ‘Al Jedda: the man mentioned 11 times by Home Office as it tried to change Immigration Bill’ (The Bureau of Investigative Journalism 2014) <https://www.thebureauinvestigates.com/2014/07/11/al-jedda-the-man-mentioned-11-times-byhome-office-as-it-tried-to-change-immigration-bill/> accessed 6 January 2016. The International Observatory on Statelessness, ‘Vietnam’ (Nationality for All 2015) <http://www.nationalityforall.org/vietnam> accessed 8 March 2016; UNHCR, ‘2015 UNHCR subregional operations profile South-East Asia’ (UNHCR 2015) <http://www.unhcr.org/pages/49e4899d6.html> accessed 8 March 2016. UNHCR, ‘Ending Statelessness’ (UNHCR, <http://www.unhcr.org/pages/49c3646c155.html> accessed 7 March 2016.

2010)

-‘Handbook on Protection of Stateless Persons’ <http://www.unhcr.org/53b698ab9.html> accessed 8 March 2016.

2014)

(UNHCR

-‘Mapping Statelessness in The United Kingdom’ (UNHCR 2010) <http://www.unhcr.org.uk/fileadmin/user_upload/images/Updates/November_2011/UNHCRStatelessness_in_UK-ENG-screen.pdf> accessed 8 March 2016, 7, 58-59. -- ‘The Concept of Stateless Persons under International Law’ (UNHCR 2010). <http://www.unhcr.org/4cb2fe326.html> accessed 8 March 2016. -- ‘UNHCR hails move by United Kingdom to end legal limbo for stateless people’ (UNHCR 2013) <http://www.unhcr.org/5163ec646.html> accessed 8 March 2016.

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Warrell H, and Pickard J, ‘May bids to make terror suspects stateless’ (The Financial Times 2013) <http://www.ft.com/cms/s/0/1cf6beee-4afb-11e3-ac3d00144feabdc0.html#axzz3xVhCJSrQ> accessed 17 January 2016.