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- PublicationRethinking legal and procedural rules in rights-based systemic climate change litigation: a comparative study of European countries(University College Dublin. School of Law, 2022)This PhD thesis by papers examines the extent to which climate change requires us to rethink or recraft legal doctrines and procedural rules in rights-based systemic mitigation cases in Europe. The three doctrines focused on, in each of the respective papers, are standing, justiciability, and causation. The thesis begins by contextualising and locating the research in the wider body of climate litigation scholarship before unpacking the thesis’ epistemological and theoretical stance: a stance broadly supportive of rights-based approaches. To arrive at this position, the thesis engages with various critiques of rights-based approaches to climate action. The thesis illustrates how a rights-based framing can and should be a practical and effective discourse for dealing with climate issues, but that creative scholarly thinking is required when it comes to dealing with standing, justiciability, and causation. The thesis then proceeds in three papers. The first paper investigates whether an exceptional approach to standing rules is needed in rights-based systemic mitigation cases to reconcile the gatekeeping function of European domestic and regional courts like the Court of Justice of the European Union with the complexity and urgency of the climate crisis. The paper shows that developing inclusive standing rules for rights-based systemic mitigation cases does not require (European) courts to stretch existing standing rules to breaking point but rather to engage seriously with the existing access to justice obligations and the wider purposes of the UNECE Aarhus Convention. The second paper explores the question of what role (if any) do judges already play and should judges play in reviewing the adequacy of states’ climate mitigation policies in rights-based systemic mitigation cases? It asks whether the role of judges needs to be reconceived in the era of climate breakdown? The central finding of the second paper is that judges can and should scrutinise actions of the other two branches on climate mitigation and that it is possible to do so in a manner that does not do violence to the doctrine of the separation of powers. The third and final paper examines the question of causation and the fair allocation of responsibility in rights-based systemic mitigation cases, using a climate justice framing. It looks at whether the widely accepted political theory contributions on climate justice particularly in relation to fair burden sharing, harm avoidance, and a just distribution of the remaining carbon budget can (and ought to) be incorporated or reflected in judicial reasoning on causation in rights-based systemic climate litigation. It examines if and how wider use of the European Court of Human Rights’ lenient approach to causation at the national level could be a way of overcoming causal difficulties that might otherwise extricate wealthy developed country governments that are signatories to the European Convention on Human Rights from responsibility. It also illustrates how rights-based arguments might be a way of operationalising climate justice in judicial reasoning in rights-based systemic mitigation cases in Europe. The central claim of the thesis is that each of the knotty doctrinal questions – standing, justiciability and causation – can be resolved in rights-based systemic mitigation cases without upending the existing legal order in Europe where expansive and creative interpretations of these doctrines are embraced. The value of pursuing these kinds of interpretations is that they allow fundamental rights to deliver on their emancipatory promises in the face of a worsening climate crisis.
- PublicationThe Impact of a New Halal Policy on Certification Bodies: The Case of the UAE(University College Dublin. Graduate School - Social Sciences and Law, 2022)The UAE vision 2021 aims to make the UAE among the best countries in the world in terms of economic and social development. In line with this vision, the Islamic Economic Strategy was launched. To this end, the country needed to cement its role as a global regulator of the halal industry. Therefore, a new policy for halal products was introduced in 2014, which provide a comprehensive approach that outlines the requirements and process by which food and other products should be certified halal. The process entails that HCBs comply with the policy requirements, including obtaining accreditation to certify products for the UAE market. This study, therefore, investigates the impact of the UAE-HP on HCBs, who play a key role in this policy and further seeks to understand the challenges they face as policy implementers. The study also proposes regulatory changes to alleviate those challenges to maintain and enhance smooth and successful policy implementation. The two research questions that guided this study were: (i) Research Question 1: What are the challenges faced by HCBs during the introduction of the new UAE halal policy?( ii) Research Question 2: What regulatory design amendments are needed to alleviate the challenges faced by HCBs during the implementation of the new UAE halal policy? The theoretical framework of this study was based on the model proposed by Jensen & Youngs (2015), which presents a set of variables that influence the implementation process and determine the success or failure of a policy. In addition, specific variables from the literature review relevant to the halal implementation context were also incorporated. The interpretive method was adopted using a qualitative exploratory case study design using a thematic analysis approach. Data was collected through in-depth semi-structured interviews conducted with 26 global HCBs divided into three groups (old, enduring and new). In addition, further interviews were conducted with representatives from accreditation bodies and the regulatory body. The study's findings correspond to earlier research findings on the need for institutions to accurately understand and consider various stakeholders' capacity and provide them a reasonable time to prepare themselves and fulfil the policy requirements (Waluyo 2020; Barthwal and Sah 2008; Weaver 2009). In addition, however, findings confirm earlier studies of the noticeable effect that animal welfare and anti-halal groups can have on halal certification in Europe, North America, Australia, and Asia (Fuseini et al. 2016; Yusoff & Sarjoon 2017; Ahmad et al. 2017; Van Waarden & Van Dalen 2011). Nevertheless, the findings indicate that the impact of these groups is minimal and does not hinder the day-to-day certification activities. While the study’s exploratory nature aims to identify challenges in the UAE policy implementation, the findings also shed light on the opportunities HCBs obtained during their journey with the UAE halal policy. This study is unique in the UAE context. It discusses its halal policy as an extraterritorial jurisdiction policy, which adds complexity to the regulator and the implementing body. Hence, the study findings can be helpful not only for the UAE policymakers but also for similar contexts. As a result of this study, a new conceptual framework on halal policy implementation was developed. Furthermore, practical ideas were provided to improve policy implementation in the Gulf and similar countries with a halal top-down policy implementation approach. The case study contributes to implementation theory by utilising Western policy implementation theories in different contexts. The study, therefore, fills the scarcity of empirical research studies on policy implementation in the UAE and similar regions of top-down implementation models. Furthermore, this study contributes to halal policy implementation research, which was limited (Aziz & Chok 2013).
- PublicationDoing History to Justice: Theory and Historiography in the History of International Criminal Law(University College Dublin. School of Law, 2022)Taking its methodological cues from recent work on the theory and history of international law, this thesis has two primary aims. Firstly, to explore how history figures within international criminal law (ICL) scholarship and to identify the dominant historiographical trends present within this body of work. And secondly, with these trends and tendencies in mind, to identify and reclaim historical episodes that fall outside this established account, but which might still tell us much about the development and current state of the field. Part I provides a literature review and situates the thesis within the broader corpus of international law and ICL scholarship, focusing on the extent to which ICL scholars have undergone a ‘turn to history’ as in other subfields of international law. Following this, Part I then sets out the critical and theoretical underpinnings of the thesis. There is, firstly, the concept of periodisation which I draw on to think through how the dominant disciplinary accounts of ICL’s development are structured. And secondly, there is the body of work associated with ‘Third World Approaches to International Law’. This body of work will assist in developing substantive critiques of the mainstream accounts of ICL and will also provide guidance when developing my own ‘counter-narrative’ of ICL’s development in later chapters. Parts II and III of the thesis will draw on these historiographic insights with a view towards unsettling the standard account of ICL’s development. To this end, they will focus on specific moments where ICL norms and notions of international criminality animated popular activist causes during the American Civil Rights era, as well the anti-war movement during the Vietnam War. These two episodes have particular value, I will argue, as they help us to move beyond the institutional settings we typically focus on when engaging with the history of the field. The thesis thus concludes with a reflection on the value of this approach and signals some future directions for ICL scholarship.
- PublicationReformulating the contribution of EU Private International Law to the development of the private enforcement of EU Competition Law(University College Dublin. School of Law, 2022)This research considers the role of EU Private International Law (EU PIL) in the development of the private enforcement mechanism for Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). This mechanism refers to actions before national courts seeking, most commonly, compensation for harm caused by infringements of these Treaty provisions. The thesis starts from the assumption that the EU PIL instruments are indispensable for the enforcement of EU competition law claims. Of particular importance are the PIL rules on allocation of jurisdiction, and, identifying the applicable law. This is because EU competition law applies only to behaviour capable of affecting competition in the internal market and trade between Member States. Therefore, litigation based on EU competition law infringements typically (although not invariably) involves cross-border elements. It will be argued that the current EU competition law policy on the development of the private enforcement mechanism is too narrow, and, cannot ensure the full effectiveness of EU law. It argues that the role of the private enforcement mechanism is to complement the public mechanism towards ensuring the objective of detection and deterrence. On the basis of already published empirical evidence, this thesis will demonstrate, in order to unleash the full potential of the private mechanism to complement public enforcement, a complete private mechanism must be developed. It should address a full and varied menu of (EU) remedies alongside the remedy of damages. The thesis will focus on the role of EU PIL in supporting the development of a complete private enforcement mechanism in the shape of one that is capable of complementing public enforcement and of ensuring the full effectiveness of EU law. Given the time and word count limitations of this research, the analysis focuses primarily on the legal and jurisprudential developments in the context of actions for damages. The results of the analysis are far-reaching, and, allow this author to offer conclusions on the future role of EU PIL in the context of damages and non-damages remedies. The emerging conclusion is that the current EU PIL instruments are too rigid for the necessities of EU competition law litigation, and they apply only on account of the lack of more suitable rules. By examining the CJEU jurisprudence, the thesis will demonstrate the emergence of an EU civil law system which supersedes the scope of the substantive law identified by the PIL rules. This author proposes that all remedies which are necessary to ensure the full effectiveness of EU law should be governed directly by EU civil law (as EU remedies). A general jurisdiction rule specific to EU competition law litigation should also be established. The role of EU PIL should be only to support transition to that ideal mechanism. If such a system cannot be achieved, or, if it is not desired upon further consideration, the current EU PIL instruments should, at least, accommodate the particular intricacies and necessities of EU competition law litigation. The thesis contributes to the literature by analysing the role of EU PIL rather than its practical application. While it clarifies the application of the current PIL rules, it aims, primarily to propose a new approach for EU PIL in competition law litigation. Under the proposed approach, EU PIL should play either not role in the long-term development of the private enforcement mechanism, or, play a much more limited role than was assumed at the outset of this research, and, in the pre-existing literature.
- Publication'An analysis of the ongoing erosion of the presumption of innocence in Irish law’(University College Dublin. School of Law, 2022)This thesis provides a comprehensive overview of the presumption of innocence in Irish law. It argues that the scope of the presumption of innocence is not confined to narrow evidential rules at criminal trials but is a broader right extending beyond the trial setting to Garda investigations. It also argues that the presumption of innocence continues to be eroded both by legislation and judicial findings. It demonstrates this by analysing case law from Ireland, the European Court of Human Rights and England and Wales. This study complements the work of Hamilton (Hamilton, C, The Presumption of Innocence and Irish Criminal Law (Irish Academic Press 2007)) in two ways – by conducting historical research on the treatment of the presumption of innocence in Ireland prior to Woolmington v DPP and by analysing the ongoing erosion of the presumption of innocence in Irish law in the period from 2007 to 2021, which is not covered by Hamilton’s book. Chapters 1 and 2 are foundational. Chapter 1 engages with the great debates about the presumption of innocence. Chapter 2 conducts a historical survey of the presumption of innocence in England and Ireland and the degree to which the courts have interacted with the presumption. Chapter 3 examines the extent to which the presumption of innocence is under significant threat of erosion by reverse onus provisions. Chapter 4 argues that the presumption of innocence is eroded by legislation that criminalises silence. In Chapter 5 the problem of drawing adverse inferences at trial from an accused person’s failure to account during Garda questioning is discussed. The ‘failure to account’ provisions are analysed. Chapter 6 analyses the more general abridgment of the right to silence and the presumption of innocence by the introduction of ‘failure to mention’ provisions for ordinary criminal offences. The absence prescribed caution is also analysed in depth. The European Union Directive on the presumption of innocence is examined. The broader trend of weighing up competing interests in the administration of justice is analysed in Chapter 7 to explain the broader context in which the erosion of the presumption of innocence has occurred.