LawReview
TheMenendezbrothers:Manslaughteror Abuse?
The Menendez brothers’ case, CA v Menendez 1993, was a trial against Erik and Lyle Menendez who had shot their parents sixteen times whilst they were watching television – ultimately sentenced to firstdegree murder and lifetime in prison without parole.
The defence of Lyle and Erik Menendez, after admitting to their actions, claimed that they had acted out of fear for their lives In claiming that their father physically, sexually, and emotionally abused them, with their mother Kitty Menendez accused of being complicit in failing to protect them, the brothers were able to argue for self-defence in face of such severe abuse, that years of childhood trauma had engrained a ‘kill or be killed’ response Secondly, similar to the ‘Battered Woman Syndrome’ in domestic violence cases, the defence argued for ‘Battered Child Syndrome’ in that the brothers had been psychologically conditioned as to believe that their parents had capacity to kill them because of previous violent encounters, giving them cause. Further, in attempt to steer decision away from murder charges, the defence argued lack of premeditation, claiming that the murders were spontaneous and driven by an immediate, instinctive fear, with their spending spree after the killing as a psychological state, perhaps a coping mechanism, and not result of financial greed These were all rejected
The judge’s final decision of first-degree murder relied on the prosecution’s case in arguing financial incentive and not spontaneous fear The prosecution argued for lack of immediate threat in counter of selfdefence, that the parents were unarmed and watching TV when killed, with no evidence pointing to intentions of harming their sons imminently – where there was no evidence that they would ‘be killed’ Against the claim of ‘battered child syndrome’, prosecution highlighted inconsistencies in the brothers’ respective abuse claims, emphasising how there were no corroboration of sexual abuse and that Jose Menendez was not ‘the kind of man that would’ abuse his children. Further, the prosecution argued against no premeditation in arguing for their motivation of inheriting the inheritance, claiming that they had planned the killings to inherit their wealth, as evidenced by their lavish shopping spree after the killings
The judge Stanley Weisberg, in the second trial 1995-96, based his reasoning on principes of premeditation, deliberation, and intent – to class the case as a first-degree murder. In
Abila
concurring with the prosecution, he reasoned for premeditation; he pointed to deliberation in the use of firearms, the deliberate reloading of shotguns, and brutality of sixteen shots total, including point-blank executions; and finally seemed to assent to financial greed to fulfil intent
It has recently been brought back into the light after new evidence has been introduced –including a letter Erik Menendez wrote in 1988 to his uncle Andy Cano, describing the sexual abuse he had endured from his father, and evidence from Roy Rosello saying that he had been drugged and raped by Jose Menendez, the father, when he was a teen. In analysing both the prosecution and defendant’s original cases, it becomes easier to see why reevaluation of the decision is pivotal, where the basis of the prosecution’s case was in highlighting no corroboration of sexual abuse, this evidence undermines their argument and provides critical proof of the brothers’ claims on ongoing abuse. Do you think the brothers deserve a re-trial?
Assisteddying:thelawanditsevolution
Imogen
The debate around the legalisation of assisted dying is extremely contentious with many taking polarising views This article addresses the current law in the United Kingdom, the proposed new legislation, and the legalisation of assisted dying in other countries
In England and Wales it is a criminal offence to commit an act “capable of encouraging or assisting the suicide or attempted suicide of another person” under Section 2 the 1961 Suicide Act, despite a person committing suicide no longer being recognised as a crime This law is in place to preserve a person’s right to life, as stated in Article 2 of the European Convention on Human Rights (ECHR) and prevent the exploitation of vulnerable individuals that may be pressured into prematurely ending their lives The severity of the illegality of assisted suicide is shown through the maximum penalty of 14 years imprisonment. However, there are certain exceptions as the Director of Public Prosecutions (DPP) and Crown Prosecution Service decide whether or not it is in the public interest to prosecute Guidelines published by the DPP in 2010 place greater emphasis on the motivations of the suspect and outline six factors which could mitigate prosecution, such as if the suspect was wholly motivated by compassion, as well as 16 factors that could favour a prosecution, such as if the victim was under 18
There have been a series of cases contesting the criminalisation of assisted dying on the grounds that it opposes a person's right to individual autonomy This was shown in the cases of Tony Nicklinson v Ministry of Justice (he was paralysed, only able to move his eyes after a stroke and wanted to end his life) and Noel Conway v Secretary of State for Justice (he had terminal motor neurone disease and wanted the option of an assisted death in his last six months) in which both claimants viewed the assisted dying legislation as contravening the ECHR Article 8’s right to a private life Both cases reached the Supreme Court which ruled that assisted suicide was incompatible with Article 8, but that it would be institutionally inappropriate to make this declaration and that any changes to legislation should be made by Parliament
Kim Leadbeater’s Terminally Ill adults (End of life) Bill that achieved a majority in the parliamentary free vote proposes the legalisation of assisted dying for terminally ill adults in both England and Wales. This proposed legalisation is far stricter than in other countries with it having a series of safeguards such as: the required approval of two doctors and a High Court judge, the person being expected to die within six months and the person having the mental capacity to make this decision. Pressuring or coercing someone into ending their life would
still be illegal under this bill with a 14 year prison sentence Six countries in Europe have already legalised assisted dying for both the terminally ill and those experiencing intolerable suffering, with the Netherlands and Belgium allowing it for those under eighteen with parental consent and not requiring a judge’s approval. Switzerland was the first country to permit assisted suicide in 1942, under the condition that the person acts unselfishly, and is one of few countries that allows foreigners access to help to die Assisted dying is also legal in ten US states with legislation strict like that proposed in the UK, only being permitted to the terminally ill and requiring the approval of two doctors
The challenge with the judicial interpretation of conflicting statutes which has failed to endorse assisted dying is that it may accelerate a person's decision to seek an assisted death overseas, ahead of infirmity, and take the vulnerable outside of the protection of a regulated environment It also leaves friends and family members with the unenviable choice of refusing to assist a loved one or be vulnerable to prosecution For the jurist, it reflects the limits of the scope of judicial interpretation and is a case where legislative clarity by parliament is overdue. Balancing the protection of human life with freedom of choice at both the inception and end of life is controversial; Leadbeaters Bill will clarify where the legislature stands on the dignity of an assisted death.
Thelegalliabilityfortheactionsofartificial intelligence,withafocusonthelegal personhoodofAI
Neda
If your dog bites someone, you are liable for the damage caused. If your adult offspring bites someone, you are not liable for the damage caused If the artificial intelligence that you developed results in the crash of an autonomous vehicle, the question of liability is up in the air.
Unlike traditional accidents, it is unclear whether the driver of the car, the programmer or even the AI itself is responsible. The legal liability for the actions of artificial intelligence is an area characterised by ambiguity, which stems from a fundamental disagreement over what AI is Does it truly possess autonomy, or does it turn an input into an output according to a predictable algorithm?
The lack of legislation in this regard means that victims of AI failures would have to seek compensation under the tort of negligence and would thus need to prove that the defendant breached their duty of care to the claimant Yet this relies on the assumption that the AI was defective, in which case the liability for negligence would be on the entities who
either caused this or should have foreseen this defect reasonably occurring. Should it be agreed that the AI acted ‘of its own accord’, in a way that was unpredictable to the developers, then it could be that no-one is held accountable
Granting AI legal personhood would then eliminate much of the friction that legal dealings with AI currently face. The process of compensation would become significantly easier as it would be possible to develop legal insurance and contracts for AI itself This would also open AI up to being sued or fined, creating a stronger incentive for companies to ensure ethical programming
However, the absence of consciousness, intent or moral reasoning could be reason to avoid granting AI legal personhood. The examples of inanimate objects being given legal personhood are generally considered obscure, with only corporations and international organisations typically having their legal personality accepted. Although companies are not people, they still break the law due to decisions made directly by humans, which is why their legal personhood is valid AI, however, is not usually understood to operate as an independent actor in this way.
Additionally, legal personhood is two-fold. It entails holding duties, as well as holding
rights This would open up another jurisprudential dilemma – what rights do we grant AI, if any? Would we end up legally obligated to treat it fairly? Would AI be able to sue us?
Other models may provide a better solution, such as strict liability that treats AI as a product rather than a person Alternatively, AI could still become a legal entity, but with restrictions that place it between a person and a tool It all comes down to how we come to interpret what AI truly is – does it make its own decisions?
Whyhavecourtsruledagainstother schools’uniformbutnotWycombe Abbey’s?
Abila
We don’t like uniform and people claim it breaks the law. Whilst it may be understandable for us all to prepossess certain reservations towards having to wear uniform – whether that be the extra one-minute wakeup to tie our ties or the inability to move our arms in the blazers – our rules on uniform are in fact not a violation of human rights Outlined below are instances in which courts have ruled on the illegality of school uniform –and hopefully you can distinguish where Wycombe contrasts.
First and foremost lies the principle of freedom of religion. Where Sarika WatkinsSingh, from the Watkins-Singh v Aberdare Girls’ School 2008 case, was banned from wearing a kara, a Sikh iron or steel bracelet representing the oneness and eternity of God, the court ruled against Aberdare on basis of
religious discrimination, under the Equality Act 2006. Yet, in ruling against a Christian purity ring in Playfoot v Millais School 2007 in citing it as personal choice, it set precedent for other religious attire cases, enforcing schools to accommodate essential religious symbols
In comparison, the US courts ruled against religious attire in A M v Cash 2009, where a student was banned from wearing a rosary because of its association with gang activity, citing that school safety concerns overrode religious expression rights Wycombe however, in allowing ‘a simple chain necklace with a religious symbol’ or ‘a bracelet where required by religion’, and even ‘a simple ring’ indeed highlight the difference between these court cases and our freedom-allowing rules
Protection of freedom of expression is also extended to political expression, but perhaps more prevalent in the US than the UK. The landmark case of Tinker v Des Moines1969 cemented students’ rights to free speech in schools. When Mary Beth Tinker and others wore black armbands into school to protest the Vietnam war, she was asked to remove the armband and suspended The court ruled for the students under the First Amendment, emphasising that students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’ –something that has been carried forward
On gender discrimination, more recently, courts ruled against uniform in Hayden v Greensburg Community School Corporation 2014 When a male basketball player challenged school policy requiring boys to have short hair but not the same for girls, the court ruled against the school in finding gender-discriminatory practices under the US Title IX o sex-based discrimination in education And following the Equality Act 2010 in the UK, further policy shifts have occurred that allow more flexible uniform options, for non-binary or transgender students –something Wycombe has had on offer
In this way, Wycombe’s uniform policies seem to avoid legal issues faced by other schools, in accommodating religious symbol and uniform choices, hence not technically infringing on our legal rights
Theruleoflawandwhyit’ssignificant
Imogen
The rule of law refers to the principle that all citizens within a country or state are ruled fairly and equally by the law This aims to uphold the ideal that no one is above the law, even those in positions of power, including those who make and enforce the law The rule of law requires justice to be impartial and accessible which is facilitated through the independent judiciary system present in most democracies that allows for governments, as well as ordinary citizens, to be held accountable to established laws. The creation of Magna Carta (The Great Charter) in 1215 legitimised this idea that the law had a separate sovereignty greater than that of the King
While the rule of law places authority in the hands of the law as opposed to individuals, a society under the “rule of man” allows for one individual, or a group of people to rule a country without regard for the law. Under this society people respond to orders issued by those in charge instead of the pre-existing law
A historical example of this was Charles I’s personal rule during which he did not call parliament and instead ruled as an absolutist monarch Another system in place is “rule by law” which uses the law as a “tool of governance” for those in power. This is the system that originated from the school of legalism in China during the 3rd century BC and places those in power above the law In
this system the judiciary do not apply the body of laws independently, as with the rule of law, and instead apply the law to achieve the wishes of the state
The constraints on the UK government in accordance with the rule of law were illustrated by the Supreme Court’s decision on the prorogation of parliament by Boris Johnson’s government This was in the case of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland. The government’s actions were subject to the rule of law when the Supreme Court found Boris Johnson requesting the Queen to exercise her power of prorogation both “justiciable and unlawful”, thus the prorogation had no effect. This case clarified what is “outside the powers of the Prime Minister” and reinforced the idea that when using the powers of the Royal Prerogative the government must respect parliamentary sovereignty. This is a prime example of the British judiciary system holding
the executive responsible for a breach of power
Limitations of the rule of law in the present day could be seen in the case of Trump v United States Here, the Supreme Court ruled 6 to 3 that the President has absolute immunity from criminal prosecution for all official “core constitutional” acts, presumptive immunity for acts within the “outer perimeter of his official responsibility” and no criminal immunity for unofficial acts Allowing presidents to use their power to commit blatantly criminal acts with no legal consequences under the guise of an “official act” is seen by many as a setback for democracy and placing the president above the law This is a clear breach of the rule of law. Due to sovereign immunity, the King of England is above the rule of law and unable to be prosecuted for criminal or civil charges and it has been argued that providing the President with such a power enables him to act effectively as a monarch.
The rule of law is an extremely significant protection in a western liberal democracy that must be maintained to check the power of the executive from arbitrary and aberrant actions towards its citizens
Howusefularethecurrentsetoflawsand treatiesforfairlyregulatingtheuseof extraterrestrialresources?
Neda
Space is the next juicy bone of bounty, and the powers of the world are starving.
Gold and platinum inside asteroids; helium-rich regolith on the moon; ice and frozen gases on comets; limitless solar energy; invaluable radiation and vacuums – utilising the resources available beyond the Earth would revolutionise energy, telecommunications, pharmaceuticals and manufacturing, to name a few. Though while governments, private companies and multinational agencies are contending for the realisation of their voracious ideals, the law has already staked its claim to the fair regulation of extraterrestrial resources – at least on paper
Internationally, the earliest widely adopted agreement was the Outer Space Treaty of 1967, which declared space as the ‘province of all mankind’ over which no nation may claim sovereignty. But, without the privilege of foresight, it did not consider what would happen when competing actors decided to drill into that province.
Twelve years later, the Moon Agreement of 1979 tried to establish lunar resources as the ‘common heritage of all mankind’ and encourage an ‘international regime’ for administering the resources of any exploration. The common heritage principle has been a tenet of international territorial law,
featuring in similar historical agreements like the Law of the Sea Treaty in 1982. Yet, the guiding principles of unity and impartiality were not sufficiently enticing; no states that conduct their own human spaceflight exploration – ‘space powers’ including the United States, China and Russia – ratified the document
Using to the Law of the Sea Treaty as a parallel to these agreements, in its affirmation that no state may claim sovereignty over the deep seabed and declaration of deep-sea resources as the common heritage of mankind, only the former possesses mechanisms for its implementation The International Seabed Authority acts as a regulatory body whose approval must be obtained before beginning commercial exploitation, supported by the International Tribunal for the Law of the Sea which settles disputes. Armed with these instruments, the Law of the Sea Treaty has largely been considered an empirical success, despite the refusal of the United States to ratify it. Conversely, both the Outer Space Treaty and the Moon Agreement come with no such mechanisms
These pacts shrouded an absence of practicality with symbolism and optimism, leaving nations and organisations in a fourdecade limbo In China and the United States,
ambitions to use lunar resources for supporting future space exploration and the development of nuclear fusion have been expressed but are not yet at the point of fruition.
Some countries, such as Luxembourg, have pioneered their own national legislation. The 2017 Space Resources Act grants private companies legal ownership over resources they extract from celestial bodies – including allowing non-Luxembourg companies to register under its jurisdiction, which has unsurprisingly been attractive to numerous commercial space venturers. In order to bypass the Outer Space Treaty, Luxembourg argued that owning extracted materials is not equivalent to claiming sovereignty over celestial bodies In undermining the common heritage principle, such policies raise concerns about the monopolisation of space resources, wherein wealthier actors could establish de facto control over mining sites and create an imbalance in global access to extraterrestrial resources.
In the final analysis, it appears that the formulation of a robust legal framework concerning the administration of extraterrestrial resources has fallen behind the rapid development of the necessary technology to be able to achieve this A stagnant legal grey area is what we are left with, which we will undoubtedly be driven to develop in the coming decades. Whether we promote an egalitarian approach or give way to commercial exploitation and the possibility of unbounded human advancement remains to be seen
TheSpanishSaga:whentheypunishyou fordoingwhattheywant
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The Energy Charter Treaty is a multilateral treaty that encourages international energy cooperation (both non-renewable and renewable) Since 2011, Spain has been hit with over 51 ECT lawsuits from investors, making it one of the most-sued countries under the ECT because of encouraging renewable energy investments With 49/51 based on Spain’s RE initiatives, 19/23 of currently decided cases were in favour of the investor
This all originated when Spain’s 2007 decree guaranteed feed-in tariffs (i e stable revenue) to investors to meet the EU renewable energy targets of 29 4% by 2010 But this made Spain overly popular for energy investments, causing the Spanish government to lose more money in addition to their financial crisis To ameliorate their finances and debt, Spain changed their FITs with “a reasonable rate of return” to cut their subsidies in 2010. Many investors saw this as violation of their rights in ECT 10(1):
“ Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting
Parties fair and equitable treatment ”
The main claim was of investors’ “economic expectations”, arguing Spanish actions were “contrary to the principles of legal certainty, legitimate expectations and non-retroactivity” (Lopez, 2018) because investors now received less return Spain’s main tried (and failed) defences to their regulatory sovereignty are as follows:
I. Public Interest
Spain justified its subsidy cuts in citing its 16billion euro tariff-deficit in 2010, from 2000 In 2009 alone, they spent 3.2billion subsidizing solar and wind power (IISD, 2010) They argued that these changes were necessary to protect consumers and ensure their own economic stability Yet, despite acknowledging their economic difficulties and Spain’s right to change regulations, such as in Eiser v Spain, courts still ruled against Spain because of their responsibility to adhere to the investor protections of the ECT as a signatory
II Foreseeability of ‘legitimate expectations’
Spain claimed that investors should be able to foresee that subsidies could be modified based on the country’s economic circumstances, hence not breaching conditions of legitimate expectations Backed by case law, the Spanish Supreme Court had previously ruled that legal frameworks can be
changed and that investors had no guarantee of permanent regulatory stability Having established this, the question then is to what extent a state’s acknowledged right to regulate may be pushed with accord to treaty obligations of investors’ FET In turning to the purpose of the ECT, the tribunal identified the purpose to ‘promote long-term cooperation in the energy field’ Hence, where the purpose was to enhance the stability required for such cooperations, which Spain breached through their changes, tribunals hence prioritised the treaty and the investor’s ‘legitimate expectations’ as listed under the treaty, above Spain.
III Non-Retroactivity
Spain insisted that its regulatory changes were not retroactive because they did not revoke past benefits but instead only affected future returns, upholding the view that regulatory changes were foreseeable and did not breach legal certainty. However, tribunals ruled against this argument in stating the changes’ retroactivity in impacting the expected returns – expected when investors had made the choice to invest, hence impacting the past in this way.
Spain’s experience with the ECT lawsuits highlights the tension between investor protections and a state’s right to regulate in public interest. In displaying a certain complexity to possible consequences of global initiatives, such as sustainability and renewables, the Spanish saga underscores the broader challenge of balancing legal responsibility and stability with necessary policy shifts
Howdoesthelawregulatethegig economy?
Imogen
The “gig economy” relies on short-term contracts and temporary work which is often made possible through the use of online platforms such as Uber, DoorDash, or Airbnb Advances in technology, an increasingly flexible workforce, and more individuals looking for supplemental income have led to this labour market increasing in size This is creating legal issues as most employment legislation is outdated and there is no strict legal framework that controls this new market . The growth of the gig economy has been a large contributing factor to there being six million people in the UK that are not covered by standard workplace rights
The main issue with the current legislation is the lack of clarity around worker classification UK employment law differentiates between employees, workers, and independent
contractors with each category being granted a different set of rights. Workers are granted the minimum wage, holiday pay, a 48 hour work week, protection against unlawful discrimination and whistleblowing, as well as statutory sick and maternity pay Employees have more comprehensive employment rights as they are granted protection against unfair dismissal, a minimum notice period before being fired, and redundancy pay in addition to the rights workers receive Those who are self-employed are granted merely the protection of their health and safety as well as any rights set out in their contract The immense contrast in statutory rights between groups makes this worker classification so significant, especially because in the majority of contracts, gig economy workers are classified as self-employed
The lack of clarity around this classification came to light in the Uber v Aslam ruling which rose to the highest court of appeal in the UK, the Supreme Court In this case, Uber argued that it was merely a “booking agent” and that its drivers were self-employed (as stated in their contracts), therefore not entitled to the employment rights granted to workers However, the Supreme Court concluded that Uber drivers are workers whenever they have the app turned on, are in the territory in which they are authorised to work and are both willing and able to accept fares In their ruling
the Supreme Court stated that an employment contract is not the key determiner of a person’s employment status, but rather it is the reality of the relationship The court viewed that there was a hierarchical relationship with Uber drivers being both subordinate and dependent on Uber meaning they should be viewed as workers.
However, the consequences of the ambiguous nature of this ruling were shown in the case of the Independent Workers Union of Great Britain v Central Arbitration Committee which ruled that Deliveroo couriers were not workers with regards to trade union law and collective bargaining This was mostly due to their greater bargaining power compared with Uber drivers and ability to pass off work to someone else which meant that they were not entirely under the control of Deliveroo.
The gig economy is a global business model meaning there have been legal challenges and attempts to address this worldwide The Digital Platform Workers’ Rights Act in Ontario Canada in 2022 declared new rights, including a minimum wage, for workers who perform “digital platform work” which included gig economy workers The California Assembly Bill 5, implemented in 2020, assumes that a worker is an employee and places the burden of proof on employees to change this classification to independent contractor. This shows that movements to improve existing frameworks to incorporate this new labour market have begun However, the UK’s classification of a person as an employee, worker or self-employed contractor as well as the consequential benefits and rights attached to said classification need to be reviewed to prevent further judicial uncertainty
Thelimitsoflegalauthorityandlegitimacy inthecontextofauthoritarianregimes
Neda
Condemning millions to death camps on the basis of race, forcibly sterilising those with physical disabilities and murdering the children of political opponents were all perfectly legal in Nazi Germany. As in all authoritarian states, such atrocities have been facilitated by pieces of legislation that were technically sound under the regimes’ legal systems Yet this legitimacy has long been scrutinised by legal theorists; most notably during the Hart-Fuller debate of 1958 which saw proponents of two schools of thought pioneer this discussion: H. L A Hart championed the positivist viewpoint and Lon L Fuller defended the natural law perspective.
Typically, we accept laws because we have accepted that the system and authority from which they arise are legitimate – usually guided by a belief in some level of integrity within them But does the legitimacy of laws change if they arise from a system we know to be corrupt?
The aforementioned schools of thought may be understood as follows
Firstly, some would say that no amount of brutality is enough to render laws invalid The jurisprudential justification for this is the theory of legal positivism, which posits that legal legitimacy exists so long as a law was enacted through the mechanisms of the
existing legal system, regardless of the perceived morality of its contents. The legal system itself possesses the power to authorise these laws if it has been declared and recognised by the structures of governance Therefore, any laws passed by any legal system that manages to come into existence are valid, regardless of ethics or merit, which extends to those passed in authoritarian regimes
However, this does not entail a requirement to obey; positivism determines whether a law is valid, not whether it should be observed, as Hart himself agreed Given that under this theory, laws are not seen as mandates that mechanise pre-existing moral principles but as any constructions that are recognised and enacted, the validity of a law does not affect the level of obedience that it should be treated with. It is therefore important not to conflate legal legitimacy with political obligation
Alternatively, others believe that laws are intrinsically related to morality insofar that
contradicting morality would detract from the validity of a law Jurisprudentially, this is explained by the theory of natural law, as done by Fuller, which would deem laws that deviate from certain moral standards as deficient in their legitimacy Thus, authoritarian legislation that violates human rights may be considered a perversion of the law that individuals have a moral obligation to resist rather than obey
Yet the subjectivity of moral standards foments another issue While authoritarian regimes are often guided by distorted, extremist ideology, they are carried out by those that believe in the justness of their cause, just as you and I may believe that we are justified in our actions Ultimately, there is no code of morality that unifies all of humankind, meaning if the only source of legal legitimacy is perceived righteousness, then any law may be considered legitimate and deserving of compliance, given that our ideas of right and wrong are diametrically dissimilar.
Both approaches come with their own implicational baggage, which forces us to decide what the state of being a law truly connotes. Do we treat laws as the manifestation of a universal ethical code that we ought to be following, or as whatever policies a legal system decides to enact, that may be followed or disobeyed as we wish?
IllegalfishinginAfrica:Anepidemicof lawevasion
Sophie
In recent years, the presence of illegal fishing in African waters has become an infamous issue This is both due to increased awareness as well as increased frequency of dishonest fishing practices caused by the pressures put on fisheries by climate change and overfishing, which has decreased fish stock in the area. Furthermore, the issue of illegal fishing is compounded by the limited funding given to maritime security by coastal governments. For example, in Madagascar (which is the fourth largest island in the world) only 3 vessels, 8 speedboats and 18 inspectors are charged with monitoring its waters
Illegal fishing is not a straight-forward issue, it contains nuance, and the types of illegal fishing vary considerably Techniques ranging from fishing without a license to fishing with banned equipment or even not reporting catch/catching beyond limits Unlicensed fisheries (also known as “pirate fishers”) are especially prevalent in Africa as compared to other fishing hubs worldwide, which is mostly due to the aforementioned poor security. These vessels are often members of a foreign owned fleet which move in and out of Exclusive Economic Zones (EEZs) These EEZs are descried by the United Nations a “an area of the sea in which a sovereign state has exclusive rights regarding the exploration and use of marine resources, including energy production from water and wind ” In the
context of foreign fishing, EEZs are an area which cannot be exploited by foreign companies and/or vessels without paying fees to the sovereign state Therefore, when these fisheries do not gain licenses to fish in the area, the country whose EEZ it is, not only loses profit from the lack of license fees but additionally fisheries from that nation experience decreased catch due to the reduced population of fish species.
Aside from foreign fisheries circumventing attaining licenses, other categories of financial crimes are also becoming an epidemic within the industry. Namely, tax evasion and manipulation, which is often achieved by the creation of subsidiary shell companies in lowtax nations These shell companies have no assets, employees or transactions, they only exist to help the parent company direct their finances and gain profit They do this by allowing the parent entity to pay the taxes of the nation where they have registered this shell company, which is almost always in countries which have extremely low taxes. This allows them to maximise profit because not only can they fish in high population fishing zones but also reduce costs However, the creation of shell companies, although ethically questionable and economically damaging, are not the only issue for African nations in regard to the loss of profit.
Overall, it is clear that the illegal fishing industry in Africa is not a dwindling problem, in fact it is a worsening one. The financial crimes within the sector can be found in any forms and these all deeply impact the economy of these African nations via the loss of profit for those nations Therefore, if there isn’t an increase in security and policy regarding these issues, the development of these African nations’ economies will become stagnant.
