Legal Studies Research Paper Series Vol. 15, No. 1

The Faculty has distributed Volume 15 Number 1 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Mark Elliott & Nicholas Kilford: Nothing To See Here? Allister in the Supreme Court (20/2023)

In the Allister case, it was argued (among other things) that the Northern Ireland Protocol (agreed between the UK and the EU as part of the arrangements for the withdrawal of the former from the latter) was incompatible with certain ‘rights of a constitutional character’ contained in Article VI of the Acts of Union 1800. Since the Protocol is assigned a form of supremacy over domestic law by the European Union (Withdrawal) Act 2018 (as amended), Allister raised a fundamental question about the extent, consistent with constitutional doctrine, to which domestic legislation can accord external legal norms such supremacy over national law. That question is closely analogous to that which arose — but which was never fully resolved, at least at the level of constitutional theory — about domestic accommodation of the supremacy of EU law while the UK was a Member State of the EU. The Court in Allister held that the Northern Ireland Protocol was not vulnerable to challenge on the ground of incompatibility with the Acts of Union because the 2018 legislation could be largely treated as providing a complete answer to the question, rendering questions of constitutional character ‘academic’. Accordingly, it failed to recognise that the meaning and legal effects of that Act could only be satisfactorily determined by locating the statutory language within a wider constitutional framework. This paper critiques the approach adopted by the Court, arguing that it is problematic in both pragmatic and theoretical terms. It is also contended that the Court’s omission to engage with questions of theory supplies grounds for doubting the extent to which the Allister judgment (despite what certain dicta might suggest) displaces jurisprudence that paints a more nuanced theoretical picture, in which common law and statutory norms are accorded variable degrees of constitutional weight that inform the extent of their vulnerability to casual legislative erosion, and which bear on the statutory language necessary to modify them.

Ahmed Izzidien: Using the Interest Theory of Rights and Hohfeldian Taxonomy to Address a Gap in Machine Learning Methods for Legal Document Analysis (21/2023)

Rights and duties are essential features of legal documents. Machine learning algorithms have been increasingly applied to extract information from such texts. Currently, their main focus is on named entity recognition, sentiment analysis, and the classification of court cases to predict court outcome. In this paper it is argued that until the essential features of such texts are captured, their analysis can remain bottle-necked by the very technology being used to assess them. As such, the use of legal theory to identify the most pertinent dimensions of such texts is proposed. Specifically, the interest theory of rights, and the first-order Hohfeldian taxonomy of legal relations. These principal legal dimensions allow for a stratified representation of knowledge, making them ideal for the abstractions needed for machine learning. This study considers how such dimensions may be identified. To do so it implements a novel heuristic based in philosophy coupled with language models. Hohfeldian relations of ‘rights-duties’ vs. ‘privileges-no-rights’ are determined to be identifiable. Classification of each type of relation to accuracies of 92.5% is found using Sentence Bidirectional Encoder Representations from Transformers. Testing is carried out on religious discrimination policy texts in the United Kingdom.

Henning Grosse Ruse-Khan: Does IP improve the world? Technology and its impact on our planet (22/2023)

Utilitarian objectives for intellectual property (IP) rights as incentive mechanisms for innovative technologies are widely shared, even though significant debates remain on how to appropriately balance exclusivity and access. This utilitarian perspective is based on the assumption that new technologies and their deployment are in fact welfare enhancing. But is there a sound basis for this assumption? This contribution critically reviews how the technology incentivised by IP protection, as an expression of narratives of progress or ‘sustainable development’, has impacted on life on Earth. While recognising the immense benefits new technologies have brought humanity, it points to the equally severe consequences of technological progress – especially for the poor, for animals and plants. It also highlights our default reliance on technology as solution to our problems, and the un-even distribution of its benefits. Concluding with a brief analysis of the role the IP system, my main aim is to challenge conventional thinking that uncritically welcomes all technological innovation.

Rumiana Yotova: Article 27 of the VCLT: Internal law and observance of treaties (27/2023)

This entry discusses internal law and observance of treaties in accordance with Article 27 of the Vienna Convention on the Law of Treaties (VCLT). According to the provision, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Moreover, the principle set out in Article 27 VCLT has been applied in the practice of States and international adjudication for a long time. Despite the long history of the principle, the interpretation of the content of Article 27 varies and is often interrelated to related principles extending its scope by binding states concerning their acts on the domestic plane. The entry then tackles the implementation of Article 27 in general international law, investment law, and arbitration.

Eyal Benvenisti: How the Power of the Idea Disempowered the Law: Understanding the Resilience of the Law of International Organisations (29/2023)

Since the 1920s, international Organisations (IOs) were enthusiastically lauded as the ideal means to resolve international conflicts and promote global welfare. Sharing this enthusiasm, international and national courts adopted a deferential attitude toward IOs. The law they developed was premised on an unquestioning assumption that IOs’ subjection to legal accountability would be unnecessary and even counterproductive. In this Article, I delve into the ideology that inspired this law, and argue that the strong ideological support, expressed in all relevant academic disciplines, has lent seemingly scientific credibility to a law that relieved IOs from the requirements of the rule of law.

David Erdos: Data Protection Reform via the Retained EU Law (Revocation and Repeal) Act and the Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023/1417: Arguably Partially Unlawful and Liable to Undercut the UK’s Council of Europe Commitments (3/2024)

Both the Retained EU Law (Revocation and Repeal) Act (REULA) and Regulations 2023/1417 effect significant changes to data protection with potential to undercut the UK’s Council of Europe commitments. Although a non-binding incompatibility order mechanism is provided for, REULA would generally make it impossible to challenge other enactments for inconsistency with the UK GDPR. Since the UK GDPR’s standards and exemptions often overlap with those of Convention 108+, Convention 108 and even the European Convention, there is an increased danger that law contrary to these requirements will remain unremedied. The Regulations 2023/1417 narrow the meaning of fundamental rights to European Convention rights only, whereas both Convention 108 and 108+ adopt a wider open-textured and fully horizontal understanding which explicitly recognises a right to privacy (and, for Convention 108+, even data protection) as such. Since fundamental rights play a central role in data protection, there is a danger that such rights will now be underweighted. However, not only is the UK only a signatory of Convention 108+, but none of the discrete duties or specific rights included in or under any of these instruments, or required under the EU data adequacy, are directly nullified. Parliament will need to take greater care not to legislate contrary to these obligations, the judiciary should take them into account when applying the law and declarations of inconsistency should be used whenever an applicable rights concern arises. Finally, one recognition of the fundamental right to data protection eliminated by the 2023 Regulations may be ultra vires since this was in original primary law and has always had a broader scope than EU law.

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