Why the UK Government’s Plan to Overturn Court Decisions is a Bad Idea

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Photo by Jordhan Madec

By Maurice Sunkin, Theodore Konstadinides and Lee Marsons, School of Law, University of Essex

The UK government is pursuing multiple legal reforms designed to rebalance “the relationship between the government, parliament and the courts” – a commitment made in the Conservative party’s 2019 election manifesto. Many of these reforms will affect how people can hold the state accountable, potentially undermining independent scrutiny and weakening the role of the courts in holding the government to account.

Among them is a review of the 1998 Human Rights Act – the law that allows people to enforce certain human rights in British courts – and proposed changes to judicial review – a process by which people can ensure that the government obeys the law.

We were given a further insight into the government’s thinking about how it might continue to “rebalance” its relationship with the judges, with details of the proposals emerging in the press. This includes a possible “interpretation bill”, which would be a yearly act of parliament by which the government would ask MPs to overturn court decisions that the government does not like.

Alongside a growing number of voices, we argue that this is a bad idea. Even if this specific policy is not adopted, these arguments are relevant to any proposal that makes overturning court decisions routine.

Problems with the government proposals

Principally, it is difficult to see what problem this is trying to solve. Parliament is sovereign and can already overturn any court decision, from a small claims case all the way to the UK Supreme Court. This proposal, then, will give parliament zero additional powers beyond those which it already has. At most, it would give parliamentarians a regular block of time to legislate about cases the government dislikes. But it is questionable whether such a regular event is necessary and it could descend into a farcical pantomime of “find judgments to disagree with to justify this exercise”, rather than a serious focus on judgments that raise genuine, principled or pragmatic concerns.

Also, while parliament can already overturn cases, doing so is by no means routine. This proposal would make the irregular regular. It would make the non-routine routine. It would remove the political heat from overturning judicial decisions. Given that the idea is apparently rooted in government frustration with losing important judicial reviews, the proposal would mark a significant indicator of the diminishing status of the rule of law in British democracy.

There are also several important pragmatic concerns. If a carefully reasoned decision of a senior court is to be overturned, this should only be after parliament has fully considered the case and its real-world implications, especially for MPs’ constituents. MPs will need to examine how overturning this case could, for example, make it more difficult for them to challenge an unlawful benefit sanction, a discriminatory stop and search or incorrect decisions about a child with special educational needs. These matters deserve careful attention. It is difficult to see how parliament could perform this assessment on multiple cases at once as part of a general annual exercise.

Parliament should also make a careful assessment of whether, for example, the problem is the whole judgment and all its consequences or only part of the judgment and only the consequences in a few instances at this particular time. On thoughtful reflection, reversing the whole judgment forever could be disproportionate.

Being more reflective about individual cases allows time for consultations, so that the government can consider the views of experts in that area of law, and more importantly, people disadvantaged by overturning the decision. This should include impact assessments to consider the consequences for less powerful, underrepresented groups like the disabled, women and racial and religious minorities.

The consequences of overturning the case for the broader constitutional system must also be examined. Would it, for example, promote or undermine government accountability, fair procedures and government obedience to the law?

It is not good law-making to overturn important judgments as part of a generic package when the consequences for ordinary people could be so great.

Retrospective decisions

Further serious problems would arise if the interpretation bill consistently operated retrospectively. This is when the new interpretation would apply not just to future cases but to all past cases as well. People and public bodies plan their budgets, allocate their resources and make their decisions based on the law as it stands. Abolishing the previous understanding of the law all at once could generate legal uncertainty, undermine confidence in the law and damage people’s expectations about what they were entitled to.

Worse, claimants may not even bother to bring some cases for fear that victories would simply be overturned retrospectively. There would be no reason to waste the time, resources and effort. Government accountability could be undermined if people were dissuaded from bringing cases on this basis. Even the apparent support for these proposals at senior ministerial levels may send a message and create a chilling effect. Again, this is legal. But it is not the right course of action. Convenience for the government is not the same thing as the public interest.

At best, the proposal to allow parliament to routinely overturn judicial decisions would be poor legislative practice unconducive to thoughtful law-making. At worst, it would be a significant nudge of the constitution in the government’s favour and away from independent judicial scrutiny. It could threaten government accountability and the rule of law and damage the status of the UK as a model of liberal democracy.

This article was first published on The Conversation and is reproduced here under a Creative Commons Licence.

Essex Research Informs Police Review

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Photo by Bruno Martins 

Research by Dr. Simon Cooper on police accountability and the role of Police and Crime Commissioners has been cited in a major nationwide review of policing.

The Strategic Review of Policing in England and Wales, which was conducted by the Police Foundation and chaired by Sir Michael Barber, has called for a radical shake-up of the way forces are run.

It cites research by Dr. Cooper, from the School of Law, which showed that the power of Police and Crime Commissioners (PCCs) to remove Chief Constables from office is having a “corrosive” effect on policing and police accountability.

Drawing on Dr. Cooper’s research, which was published in The Criminal Law Review (Issue 4, 2020), the Strategic Review specifically highlights his finding that a vital independent review process, meant to safeguard against a compromised PCC wrongly removing a Chief Constable from office, has only been used once since 2012 and didn’t impact the decision.

The authors of the report note that “such untrammelled power in the hands of one person has created job insecurity throughout the Chief Constable rank and this in turn has led to increased churn and reduced tenure.”

Dr. Cooper said: “Policing is at an inflection point. The Strategic Review comes at a time when public confidence is low and policing is under pressure. The Strategic Review will help shape the future of policing.

“The interviews I conducted find the PCC’s power to remove Chief Constables has already compromised the independence of senior officers. As currently formulated, the PCC’s s. 38 power creates an environment in which it would be possible for a PCC – effectively a layperson – to command, overrule and potentially even control a Chief Constable. We urgently require a Select Committee inquiry to re-examine the PCC’s power to remove their Chief Constable.”

Dr. Cooper’s research was based on a series of interviews with PCCs, Chief Constables, and members of Police and Crime Panels (PCPs), as well as the person responsible for introducing the current system and one of the most senior figures in policing at a national level.

This post first appeared on the University of Essex’s news webpage and is reproduced on the ELR Blog with permission and thanks.

Incremental Development of a Legal Framework for Arbitration in Emerging Markets: A Case Study of Construction Arbitration in Nigeria

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Photo by David Rotimi

Dr. Fikayo Taiwo, Lecturer in Law at the University of Essex, has concluded her Ph.D. thesis titled ‘Incremental Development of a Legal Framework for Arbitration in Emerging Markets: A Case Study of Construction Arbitration in Nigeria’.

The problem the thesis sought to investigate is the continued exportation of Africa-related disputes for arbitration outside of the continent based on a perceived lack of an appropriately attractive seat of international arbitration within the region.

Given the economic impact of arbitration activity on a nation’s gross domestic product (GDP), the issue of capital flight was especially concerning.

To this end, the aim of the thesis was dual: first, to ascertain the viability of existing frameworks for commercial arbitration in African emerging markets for the purposes of promoting their reputation as seats of international arbitration; and second, to extend the literature on the African Union’s economic integration agenda that has recently been brought to the fore again by the Agreement establishing the African Continental Free Trade Area (AfCFTA).

In dealing with the problem, Dr. Taiwo set out to investigate the main research question of the extent to which a sector-specific specialist arbitration framework could enhance the right of access to justice.

Using a hybrid methodology and the single case study design, the central argument was that, to the extent that the necessary political will is present, identifying small spaces for reform (especially through specialist arbitration frameworks) and dealing with these issues in chunks is an effective way of progressively improving the parameters of access to justice, building attractive seats of international arbitration in Africa and consequently, contribute to economic and sustainable development.

One of the original contributions the thesis makes is applying access to justice from human rights law to commercial law as a major conceptual basis for the research to address not only arbitration matters but also other issues that parties take into consideration when choosing a seat of arbitration.

The wider significance of the work lies in its ability to not only reinforce the idea that the law is part of the development and should be part of critical sectors like the construction industry but also to inform law and policy for commercial arbitration in emerging markets and international institutions.

The thesis also expands the knowledge base of access to justice and the role it plays in issues beyond the realm of human rights law and discourse.

Dr. Taiwo plans to publish journal articles from her thesis to further explore the theme of the interplay of commercial dispute resolution and human rights for sustainability, and pathways to effective regionalisation through commercial arbitration in Africa.

International Law and Transformation: Environmental Justice

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Photo by Sincerely Media

Dr. Emily Jones, Senior Lecturer in Law at the University of Essex, alongside her colleague, Dr. Marie Aronsson-Storrier, Lecturer in Law at the University of Reading, has been successfully awarded just under £5000 by the Modern Law Review to run a seminar on the theme of International Law and Transformation: Environmental Justice.

The seminar will be held at the University of Essex in May 2022 and will bring a series of experts together to discuss key issues in environmental law.

It will centre around the ability to seek transformative environmental justice by working with and through international environmental law.

Key topics of discussion will include:

  • the epistemic basis of international environmental law;
  • recent attempts to transform international environmental law such as the ongoing negotiations to create a Global Pact for the Environment or the recent recognition by the Human Rights Council of a human right to a healthy environment; and
  • the application of the law in case studies, including in crises and disasters.

Further details will be announced in due course, so keep an eye on our blog for updates.

The Rule of Law: Driving Water and Climate Inequality?

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Image: Dravyavati R., Jaipur by Rod Waddington licensed under CC BY-SA 2.0

By Dr. Birsha Ohdedar, Lecturer in Law, University of Essex

The rule of law broadly underlies the idea that ‘no one is above the law’ and that the law is created and applied fairly. The dominant liberal-legal narratives on the rule of law often do not go much beyond this. That is, they do not ascribe content about ‘what that law should be’. Rarely does this narrow ‘rule of law’ speak to any right to have law made to protect the planet and realise the needs of marginalised and deprived peoples. As Baxi puts it, there is no theory of ‘the good’ in the rule of law. There are only minimal procedural ideas that inform the dominant narratives on the rule of law.

The narrow conception of ‘the rule of law’ serves particular ideological ends. The last three decades have shown that the rule of law has been a handmaiden of economic growth and capitalism. Growth that has brought about ecological disorder at a planetary scale. For instance, the rule of law has been used as an ideological concept by international development banks – such as the World Bank and the Asian Development Bank – to pursue legal, policy and technical reforms in the Global South. Such use has transformed the reason for the law, as Krever argues, to promote the mantras of economic efficiency and entrepreneurial activity.  

Water and Climate inequality in Jaipur, India

The rule of law and its relationship with climate change can be illustrated by looking at the Global South’s water and climate conflicts. The city of Jaipur in India is a growing city in the northwestern state of Rajasthan. Like many cities in the Global South, its economy has been urbanising and growing, driven by national and international policies.

However, the urbanisation in Jaipur operates in the context of water and climate stress. In India today, 600 million people face extreme water stress, and about 200,000 die every year due to inadequate access to safe water. Climate change is intrinsically woven into this water crisis, with 44 per cent of the country under various degrees of drought in 2019, increasing the intensity of floods, cyclones and grave climate impacts. Last year, massive farmer protests, which gained worldwide attention, were partly driven by the growing water crisis in rural areas.

The ability of Jaipur to grow in deeply unequal ways has been dependent on taking water from rural communities. This has created further climate vulnerability. A key water source for Jaipur is a reservoir outside the city, connected via a pipeline. The pipeline was built in the 2000s, funded by loans from international development banks. As part of the loan conditions, there were reforms, and state utilities were corporatised. Water utilities were to be reformed to operate under market logic, driven by profit and cost-recovery, rather than treating water as a public good that served a broader social and ecological purpose.

The reforms requested by international development banks transformed how water was used and distributed. The state was now incentivised to take water and re-direct to where it earned the most money. This was for city dwellers and industrial users who paid higher tariffs for water and are more likely to pay for greater use. Poorer rural and urban communities, less financially worthy, lose out. Law and policy were central in this reform and transformation.

Law also played a role in ensuring enough water was available for the city. In earlier years, communities living around the river that now supplied water into the pipeline built small earthen dams to capture water for their use and livelihoods. The judiciary consistently upheld a government ban on these dams. This was because of a perceived threat to the sustainability of the river that was now feeding the city.

Meanwhile, groundwater, a significant water source for many, is critically overexploited in the region. Colonial groundwater laws in India have notoriously allowed landowners the right to exploit as much as they wish. While the state can restrict future exploitation in overexploited blocs, it cannot stop existing users. Participatory governance, so often tied up in neoliberal and the rule of law rhetoric, has also failed to shift power structures that depend on who owns land, has water rights, and thus wealth. The rule of law stays silent on these broader questions.

The impacts on rural communities are devastating. Communities that relied on such water for livelihoods, growing food, and day-to-day use, now see pipelines that take water into the city, passing their houses. When construction of the pipeline began, protesters were shot and killed by police. Today, communities struggle with water scarcity and water quality. As climate change intensifies, the city demands more water, and conflicts ensue. With worsening water conditions in villages, people rely on cities’ employment opportunities to migrate to urban areas.

A combination of legal, policy and technical reforms drives this ‘accumulation by dispossession’. Certain actors have benefited (namely urban industries and wealthier urban residents) and profited from the dispossession of water and other resources from the rich.

A Different Rule of Law

The lessons from this small example are that the rule of law acts as either a silent actor or a handmaiden of social and ecological plunder. The perception of objectivity and neutrality of the law masks its deployment by powerful actors. Thus, we should not assume that the ‘rule of law’ is inherently positive in our efforts to have a fairer and more habitable planet.

At the same time, the rule of law is a concept capable of a radically different meaning. Like many other concepts, such as human rights or good governance, its content can be derived and transformed as a result of concrete social, legal, and political struggle. The rule of law should be rooted in democracy. However, beyond merely the procedural, participatory sense, it can include democratic re-commoning of natural resources like water. Indeed, a ‘bottom up’, ‘ecological’, rule of law, would entail supporting the efforts of peoples’ struggles to define an ecologically and socially just law.

This article was originally published in The Rule of Law and Climate Change Blog, run by UCL Centre for Law and Environment. The post is reproduced on the ELR Blog with permission and thanks.

AHRC Grant for Consolidating Peace and Indigenous Rights through Higher Education – a Biocultural Indigenous University in the Andean Amazon of Colombia

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Photo credit: Estudio Bosque

Dr. Matthew Gillett and Dr. Marina Lostal, both Senior Lecturers in Law at the University of Essex, have jointly been awarded the competitive AHRC Grant to “Develop international networks to research peace and trust”.

Their project, titled “Consolidating Peace and Indigenous Rights through Higher Education – a Biocultural Indigenous University in the Andean Amazon of Colombia”, addresses the United Nations Sustainable Development Goal (SDG) 16 concerning Peace, Justice and Strong Institutions.

Dr. Gillett and Dr. Lostal have been awarded approximately £60,000 over 24 months to create an international, multi-disciplinary and inclusive research network, linking Indigenous representatives with researchers, human rights experts, and educational professionals. They will conduct the project together with International Co-Investigator Santiago del Hierro (ETH Zurich).

In addition, they have been awarded a £2,000 grant through the Essex IAA Active Engagement Fund to kickstart the project before the official start date of the AHRC Grant.

The research is connected to efforts to establish a “Biocultural Indigenous University” (BIU) in the Andean Amazon of Colombia. By centring Indigenous pedagogy in an autonomous institution, the BIU model seeks to strengthen the preservation and inter-generational transfer of Indigenous knowledge and contribute to pluri-epistemic collaboration.

“It is from the messages that biodiversity transmits to us, that the idea of establishing a territorial university was born: the Pan-Amazonian Indigenous Biocultural University-AWAI, led by the Inga people of Colombia, a space for dialogue between Indigenous knowledge and Western techniques, technologies and science, from a decolonial and liberating perspective, deeply collective and non-ethnocentric, with a perspective of biocultural peace to promote life until the sun goes out”.

HERNANDO CHINDOY CHINDOY (Atun Wasi Iuiai (“AWAI”), the Indigenous Territorial Entity of the Inga People of Colombia

Equally, the research project seeks to contribute to SDG Targets 16.1 (reducing violence) and 16.4, (combating organised crime and illicit financial flows), by providing opportunities for Indigenous youth to obtain qualifications and employment and escape cycles of violence, criminality, and alienation.

Given the traditional Indigenous connection with surrounding ecosystems, the BIU model also offers a pathway to ecologically-centred sustainable development.

Centring on the BIU, the research network will explore the feasibility of Indigenous-led and autonomous tertiary education in Colombia. It seeks to address the following matters:

  • how an Indigenous-led university can be established and recognised as an autonomous institution;
  • the implications of this university for the rights of Indigenous people to education, cultural and a healthy environment; and
  • the parameters of a rights-based framework for establishing an Indigenous-led autonomous institution at the tertiary level.

Alongside the creation of the research network, the project will be realised through knowledge exchange, including a workshop in Colombia, meetings with Colombian officials, and an engagement with relevant United Nations Special Mandate holders. The project will complement the Devenir Universidad network, which is researching and documenting the pedagogic and spatial planning aspects of BIU.

Prof. Theodore Konstadinides, the Law School’s Director of Research commented: “I wish to congratulate Marina and Matthew for their recent success. This is a very important interdisciplinary project that will enable us to further develop our international research networks in South America and cement the reputation of the Law School as a pioneer in addressing global human rights challenges. I am looking forward to seeing Marina and Matthew stimulating new debate and exchanging ideas with the relevant stakeholders in Colombia and promoting the United Nations’ sustainable development goals“.

Preliminary work by the grant recipients has already been undertaken, including a submission to the United Nations Expert Mechanism on the Rights of Indigenous Peoples prepared together with Hernando Chindoy Chindoy (AWAI) and others. The implementation phase of the project will commence in early 2022, with outcomes of the research project to be disseminated via publications, including a report and an academic publication.  

Dr. Gillett and Dr. Lostal would like to express their gratitude to the research team of Essex Law School (Prof. Theodore Konstadinides, Prof. Stavroula Karapapa, and Prof. Ting Xu), the internal reviewers (Prof. Sabine Michalowski and Dr. Carlos Gigoux Gramegna), and Kai Yin Low for their invaluable input while preparing this proposal.

For further information about the project, please get in touch with the Investigators: Dr. Matthew Gillett and Dr. Marina Lostal at mg21486@essex.ac.uk and ml20391@essex.ac.uk respectively.

Marie Skłodowska-Curie Actions (MSCA) European Postdoctoral Fellowships: Call for Expression of Interest

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The University of Essex is a public research university in Essex, England. Ranked 51st in the law subject section in the 2019 Times Higher Education World University Rankings, the Essex Law School is committed to excellence in research and excellence in teaching.

We have a global reputation for our research: more than two-thirds of our publications were rated as ‘world leading’ or ‘internationally excellent’ in the last national Research Excellence Framework, placing us in the top 20 for UK law schools (REF 2014).

Research and early career research development are supported through our research clusters, which provide a rich and engaging forum for discussion. We also provide supportive mentoring and research feedback to early-career academics, provided by our pathway to permanency system, as well as practical support through our research support fund and research funding application mentorship.

We host several successful research centres, networks, institutes and hubs, including the:

Further information about the School of Law can be found here. You can also find out more about the School’s research activities through our Essex Law Research blog.

MSCA European Postdoctoral Fellowships

We are looking to support a limited number of high-quality applications under the 2022 round of MSCA European Postdoctoral Fellowships and would welcome expressions of interest (see below) from interested researchers, particularly, but not exclusively, in the following areas aligning with our research clusters:

  • Administrative justice, including key areas identified in UKAJI’s research roadmap;
  • Criminal justice: contemporary issues;
  • EU Constitutional law including: the constitutional structure of the Economic and Monetary Union; social rights protection; rule of law and transnational solidarity in the EU context.
  • Human Rights theory and practice including: technology and human rights, international criminal law, gender and human rights, social and economic rights, law of armed conflict, regional systems, refugee law;
  • Environmental law including: human rights and the environment, the rights of nature, global environmental governance, international environmental law, the law of the sea, energy law;
  • Climate change law including: international climate governance, climate justice and climate litigation;
  • Commercial law, especially intellectual property;
  • Digitalisation, technology and the law;
  • Transitional justice

This year’s call for the MSCA European Postdoctoral Fellowship applications will open on 13 April 2022, with a closing date of 14 September 2022.

The Fellowships are highly flexible funding schemes offered to experienced researchers. Fellows are based at a host institution, where they will work with their supervisors to deliver a specific project involving research, innovation, training, and networking activities. The funding guarantees mobility and financial independence with a generous set of allowances.

The Fellowships:

  • are open to researchers moving within Europe or coming to Europe from another part of the world to pursue their research careers. These fellowships take place in an EU Member State or Horizon Europe Associated Country (e.g., the UK);
  • can last between 1 and 2 years and researchers of any nationality can apply.
  • a short-term secondment to anywhere in the world can be included during the fellowship.

Additional support to carry out a placement of up to 6 months in a non-academic organisation based in an EU Member State or Horizon Europe Associated Country at the end of the Fellowship is available.

Eligibility criteria

  • Applicants should have a PhD degree at the time of the deadline for applications. Applicants who have successfully defended their doctoral thesis but who have not yet formally been awarded the doctoral degree will also be considered eligible to apply.
  • Applicants must have a maximum of eight years’ experience in research, from the date of the award of their PhD degree, years of experience outside research and career breaks will not count towards the above maximum, nor will years of experience in research in third countries, for nationals or long-term residents of EU Member States or Horizon Europe Associated Countries who wish to reintegrate to Europe.
  • Applicants should comply with mobility rules: they must not have resided or carried out their main activity (work, studies, etc.) in the country of the beneficiary for more than 12 months in the 36 months immediately before the call deadline.

UK and EU

The UK Government has stated it is ready to formalise association to EU programmes at the earliest opportunity and that is its preferred outcome. As this aspect may be subject to new announcements by the UK Government, we encourage applicants to look for the most up-to-date official information here.

We will support applications only as far as they are in line with these announcements, which may mean that we might eventually not be able to support any applications in this round if UK Higher Education Institutions are not eligible to apply to Horizon Europe.

Questions

If you have any questions regarding this application, please contact Professor Theodore Konstadinides, Director of Research in the School of Law at this email address: t.konstadinides@essex.ac.uk.

Application Process

  • Read the Guidance for Applicants on the funder’s website.
  • Make sure you meet all eligibility criteria. Complete the Expression of Interest (EoI – outlined below) and send it to Ms. Kate Davis at kdavis@essex.ac.uk by 5:00 p.m. (London time) on 1 April 2022.
  • The review of expressions of interest will start shortly thereafter. Proposals will be evaluated based on research quality, the applicant’s future career prospects and the availability of appropriate supervision.
  • This will ensure sufficient time for matching the prospective applicant to a supervisor and the development of a strong application before the call for MSCA applications.
  • Applicants will be informed of the outcome of the evaluation by 15 April 2022.
  • The successful applicant[s] will be supported in completing their application by the selected supervisor. Successful candidates will also have the support of the University of Essex pre-award team in the Research and Enterprise Office, which will provide costings and will take the application through our institutional authorisation process.

Marie Curie Postdoctoral Fellowships 2022: Expression of Interest Application to the School of Law

  • Give your full name
  • Explain your eligibility for this Fellowship (e.g., nationality/long-term residence, confirm no more than 12 of the last 36 months spent in the UK for European Fellowships).
  • Provide the name of a proposed mentor within the School of Law, noting whether you have already discussed this with them, and why you consider them an appropriate fit to your proposed project. Another mentor may be suggested to you following our internal evaluation process.
  • Give details of any research projects you have worked on independent of your PhD supervisor (up to 200 words)
  • Explain why you would like to undertake a Marie Curie Fellowship, with reference to the scheme’s focus on international, interdisciplinary and inter-sectoral mobility (up to 300 words).
  • Provide a summary (up to 500 words) of your proposed research project. This should include the rationale for the project as well as research questions or hypotheses and the methods to be used to address them.
  • Explain why you have chosen the School of Law at the University of Essex as the host institution for your Fellowship application (up to 500 words).

Sustainability as a Legal Principle: Call for Papers

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Third YUFE LAW Meeting, Rijeka, 23-24 June 2022

Photo by Headway

YUFE, the Young Universities for the Future of Europe, is an alliance of ten dynamic, student-centred research-based universities and four non-academic partners from the non-governmental and private sector for an impactful European University. Together, the YUFE partners aim to establish one of the first true European Universities.

Essex is part of the YUFE alliance and is working with its partners to shape the future of European higher education by establishing a European University that’s open to all. 

Continuing its recently established YUFE LAW practice, first at the meeting in Maastricht in January 2020 and subsequently, at the meeting in Bremen in May 2021, applications are invited for the Third YUFE LAW meeting which will be held by the Faculty of Law in Rijeka, Croatia on 23 and 24 June 2022.

Following last year’s model, the discussion concerning the past and future cooperation within the YUFE LAW will be held in parallel with the dissemination of research at the international scientific conference dedicated to the topic of Sustainability as a Legal Principle.

The term “sustainable development” started gaining planetary recognition probably with the 1992 United Nations Conference on Environment and Development and the Earth Plan. At the 2002 World Summit for Sustainable Development in Johannesburg, the need for consistency between the three pillars of sustainable development – being social justice, economic growth, and environmental protection – was stressed as crucial thus paving the way for what we understand as sustainable development nowadays.

The 2030 Agenda for Sustainable Development was adopted by all United Nations Member States in 2015 to ensure common values of peace and prosperity for people and the planet, now and into the future. The core of the Agenda is made of the 17 Sustainable Development Goals (SDGs) which recognize that ending poverty and other deprivations must go hand-in-hand with strategies that improve health and education, reduce inequality, and spur economic growth – all while tackling climate change and working to preserve our oceans and forests.

Understanding sustainable development as a development that meets the needs of the present without compromising the ability of future generations to meet their own needs, its initial meaning has been broadened much beyond environmental protection to encompass virtually all aspects of human activities.

Reaching SGDs can thus be done by means of regulating emissions and promoting developments in renewable energy, developing responsible ICT enabled transformation, reducing waste, or fighting extreme poverty just as by eradicating inequalities, empowering women, ensuring full and productive employment, and decent work for all, or promoting peaceful and inclusive societies, providing access to justice for all and building effective, accountable and inclusive institutions at all levels.

Law is a powerful means in achieving SDGs because the underlying policies may be more efficiently achieved if effectively in-built in legal regulation and not just made part of promotional activities or alike. Reinforcement by means of legal norms seems to be one of the key factors in following through the 2030 Agenda.

Indeed, by now, many preambles, pieces of legislation. statements and declarations contain references to sustainable development, international, European or national. In various areas of law, support or justification for certain regulatory solutions is sought in sustainable development concerns. Such concerns are being more explicitly articulated by the courts and tribunals in different countries.

It is increasingly recognised at many levels that bringing together social, environmental and economic rules and regimes is necessary. Gradually, sustainable development has entered the legal sphere and we may ask ourselves to what extent is sustainability a legal principle.

Against this backdrop, recent years have witnessed also intensified academic discussions on the role of law in sustainable development. For legal researchers, this is a daring endeavour since it entails an interdisciplinary approach including deepening the understanding of the sustainable development and SDGs and attempting to gain a broader understanding and wider picture of the researched issues.

At the same time, legal scholars have a huge responsibility to attempt to discover the old laws which are at odds with the SDGs or to unmask the new ones which use the “greenwashing” practices rather than truly contribute to the achievement of one or more SDGs.

The Third YUFE LAW Research Conference welcomes papers from any area of law, with more or less interdisciplinary threads, which would discuss legal regulation in the context of the SGDs. The conference aims to gather experts in various fields of law affiliated with any of the YUFE partners, to discuss different topics under the umbrella of sustainability as a legal principle.

If you are interested and willing to contribute, please send the title and abstract of your proposed topic (1-2 pages) and your short CV (5 lines on current position and relevant publications) no later than 15 March 2022 to yufe.law@uniri.hr.

The conference will be held in hybrid form. The Faculty of Law in Rijeka will be able to provide lunch and refreshments to all onsite participants, but travel and accommodation should be covered from other sources (e.g., Erasmus+ funding or home institutions).

We look forward to meeting you in Rijeka!

Antonio Cassese: The Stubborn Sparrow

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Photo by C D-X

Ιn collaboration with the Cassese Initiative, Dr. Antonio Coco (Lecturer in Law at the University of Essex) recently launched ‘Antonio Cassese: The Stubborn Sparrow’, a podcast series on the work and legacy of the late Professor Antonio Cassese, pioneering international lawyer, on the occasion of the 10th anniversary of his passing.

The series is exploring Prof. Cassese’s impact on international law and institutions on five selected issues:

  • genocide;
  • terrorism;
  • torture;
  • human rights in the European Union; and
  • war crimes.

Two episodes are already available.

Episode 1 ‘Genocide and the Commission of Inquiry on Darfur’ discusses the findings on genocide and working methods of the UN Commission of Inquiry in Darfur, which Antonio Cassese chaired in 2004-2005. The two co-hosts, Paola Gaeta and Salvatore Zappalà, interview Fannie Lafontaine, who worked with Cassese as his legal assistant at the time.

Episode 2 ‘The crime of terrorism and the Special Tribunal for Lebanon’ recalls that Cassese was the first President of the Special Tribunal for Lebanon, a hybrid court established in 2007 to try those responsible for the attack that killed the former Lebanese Prime Minister Rafic Hariri and others. In February 2011, under Cassese’s presidency, the Tribunal rendered a controversial decision on the definition of the international crime of terrorism. The co-hosts Antonio Coco and Giulia Pinzauti discuss the decision and Cassese’s contribution to it with guest Guido Acquaviva, the Tribunal’s Chef de Cabinet at the time.

New episodes are released monthly on Simplecast, Apple Podcast, Spotify, Google Podcasts, Amazon Music, and everywhere you get your podcasts.

Prescripted Living: Gender Stereotypes and Data-Based Surveillance in the UK Welfare State

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From the post-war welfare state that inherently assumed married women would be supported by their husbands, to the 21st-century introduction of Universal Credit which financially disincentivises some women in cohabiting relations from working: the welfare benefits system in the UK has historically favoured individuals who conform to gender stereotypes.

At the same time, the welfare benefits system also uses more and more surveillance of claimants to determine who is ‘deserving’ of support, using increasingly sophisticated data analysis tools to impose conditions on welfare claimants and punish those who do not comply.

Laura Carter, PhD candidate in the Human Rights, Big Data and Technology Project at the University of Essex’s Human Rights Centre, published a new article in Internet Policy Review, which argues that both stereotyping and surveillance reinforce structures of categorisation – in which individuals are treated according to group membership (whether or not it is accurate) and control, through normalising some behaviours while punishing others.

The article argues that the combination of gender stereotyping and surveillance in the UK welfare state risks creating a vicious cycle, in which the categorisation and control dimensions of both stereotyping and surveillance reinforce each other.

This increases the likelihood of the system coercing welfare claimants—by definition, people living on low incomes—into certain ‘accepted’ behaviours, and discriminating against those who do not conform.

The increased conditionality of welfare benefits has already caused demonstrative harm to those who cannot or struggle to access Universal Credit. The article further argues that the coercive, surveillant nature of the welfare state risks cementing hierarchies of power that continue to stereotype and discriminate against low-income people.

This is the case particularly for low-income women who are expected to balance the demands of their disproportionate unpaid caring responsibilities as well as increasing requirements for job search activities.

Carter’s article applies a human rights analysis—including recognition of the harms of gender stereotyping, as recognised by the Committee on the Elimination of Discrimination against Women (CEDAW Committee) —to this system of coercion and conditionality, in order to make visible analysis the specifically gendered nature of the harm caused by surveillance and conditionality to welfare benefits claimants.

Applying analysis of gender stereotyping can further identify—and combat—harms that are inherent in the current structure of the welfare benefits system in the UK, with the aim of ensuring that benefits are accessible for all who need them.

Article full citation: Carter, L. (2021). Prescripted living: gender stereotypes and data-based surveillance in the UK welfare state. Internet Policy Review, 10(4). https://doi.org/10.14763/2021.4.1593