Laws, Volume 13, Issue 2 (April 2024) – 14 articles

The conflicting objectives of the Energy Charter Treaty’s (ECT) protection of fossil fuel investments and climate change mitigation can reveal themselves in investor state dispute settlement (ISDS). As neither the modernization nor the termination of the ECT is likely, ECT arbitration will continue to exist. This article, therefore, examines the reconciling potential of integrative interpretation in climate relevant ECT arbitrations. An integrative interpretation is not only prescribed by the international rules of treaty interpretation, but can also be found in the practice of international dispute settlement. However, international climate law has not yet been taken into account by a single ECT tribunal. Although some hurdles and uncertainties remain in practice, examples of extraneous treaty use, as well as the reasoning of the judgments of recent climate litigation, show that ECT ISDS has the potential to reconcile climate change and energy investment interests in the future. Full article

South African criminal law has no separate, distinct, or novel cultural defence. Such a defence could negate or mitigate an accused’s criminal liability for a culturally motivated crime. Whether South Africa’s criminal law could adopt such a defence requires understanding its influence on the requirements for criminal liability. This article evaluates the influence of the cultural defence on the elements of conduct and culpability. The first part deals with the cultural defence and voluntary conduct. The discussion then turns to culpability, which consists of criminal capacity and fault (mens rea). The third part considers the cultural defence’s influence on criminal capacity, while the fourth considers its influence on fault. More specifically, the article evaluates how the existing types of defence that can negate conduct and culpability in South Africa’s criminal law can accommodate arguments of an accused’s cultural background, values, and beliefs to determine whether there is a gap that only a separate, distinct, or novel cultural defence can fill. The article concludes that South Africa’s principles of conduct and culpability are already flexible enough to accommodate such arguments, obviating the need for introducing a separate, distinct, or novel cultural defence. Full article

The principal purpose of this article is to demonstrate how the precautionary principle can be included in the investor–state dispute settlement (ISDS) deliberative process by providing a legal solution that would permit the invocation and implementation of this concept within the ISDS operational framework. The precautionary principle has been widely applied in the environmental management field, yet its role within the ISDS framework has remained relatively underutilised. To analyse this issue, this paper first explores the operational justification of the precautionary principle and how decision-makers should endorse it in order to fully recognise and address environmental concerns on a legal level. Next, the article proceeds to examine recent ISDS cases in which the precautionary principle was invoked and compares various risk assessment techniques to illustrate how it may be incorporated into the deliberative process and harmonised with other standards. The paper suggests that the forward-looking nature of the precautionary principle has paramount importance in disputes involving oil and gas, particularly in cases where oil and gas activities are believed to contribute to greenhouse gas emissions that could worsen global warming. This paper advances the argument that a wider application of the principle could better equip ISDS tribunals to address the limitations of scientific knowledge, especially under circumstances where significant or irreversible environmental damage may occur. Full article

When the critical legal studies (CLS) movement emerged in the United States, many in the legal community were shocked by the movement’s radical calls to remake legal education. But the movement also presented bold criticisms of quantitative legal scholarship and calculation in law that have proven remarkably prophetic. This article resuscitates the CLS movement’s concerns over “scientific law” in one of the movement’s most canonical works: the Critical Legal Studies Symposium issue of the Stanford Law Review in 1984. Along the way, this article explores the scope and limits of CLS admonitions regarding quantitative research and legal problem solving for the present day. Full article

Changes to Australian law in 2022 made Australia the second country to expressly permit the clinical use of mitochondrial donation (MD), a technology that makes heritable changes to the human genome. This paper considers these changes in the context of Australia’s broader controls on human embryo use to provide insights into future regulatory responses to other emerging genetic technologies, which could be used in reproduction. Full article

Multiple civic crises facing American constitutional democracy—deepening political polarization and dysfunction, loss of confidence in major institutions and professions, and collapse of confidence in higher education—can be simultaneously redressed by restoring traditional civic education in universities and colleges. A nascent national reform in public universities, establishing departments of civic thought and leadership, reintroduces a blend of classical liberal arts and American civic education. This restores a core mission of truth-seeking and Socratic debate to universities, while providing the higher civics needed to perpetuate the American legal and constitutional order through non-partisan, non-ideological preparation of thoughtful citizens and leaders with the necessary civic knowledge and civic virtues, including commitment to the rule of law and American constitutionalism. Full article

The Directive 2008/52/EU of the European Parliament and Council of 21 May 2008, regarding certain aspects of mediation in civil and commercial matters, does not seem to have been designed for online mediation since it does not expressly include rules in this regard, though it does not prohibit it either. The Portuguese legislator, through Law 29/2013, of 19 April 2013 regulated mediation in an autonomous and systematic way in Portugal, covering internal and cross-border conflicts, and went beyond the EU requirements prescribed by the 2008 Directive, which only specified regulation to cross-border conflict mediation. Like the EU Directive, the Portuguese law does not explicitly address online mediation, but it neither prohibits nor excludes its application. In this article, we intend to present and conceptualize online mediation within the scope of Online Dispute Resolution (ODR) procedures. We will present the specific features and principles of online mediation, thus enhancing the main challenges and potentialities of its use as an adequate means of resolving conflicts. Full article

Recent studies have illuminated the potential harms associated with ultra-processed foods, including poor mental health, aggression, and antisocial behavior. At the same time, the human gut microbiome has emerged as an important contributor to cognition and behavior, disrupting concepts of the biopsychosocial ‘self’ and raising questions related to free will. Since the microbiome is undeniably connected to dietary patterns and components, the topics of nutrition and microbes are of heightened interest to neuroscience and psychiatry. Research spanning epidemiology, mechanistic bench science, and human intervention trials has brought legitimacy to nutritional criminology and the idea that nutrition is of relevance to the criminal justice system. The individual and community-level relationships between nutrition and behavior are also salient to torts and the relatively new field of food crime—that which examines the vast harms, including grand-scale non-communicable diseases and behavioral outcomes, caused by the manufacturers, distributors, and marketers of ultra-processed food products. Here in this essay, we will synthesize various strands of research, reflecting this emergent science, using a notable case that straddled both neurolaw and food crime, Huberty v. McDonald’s (1987). It is our contention that the legalome—microbiome and omics science applied in neurolaw and forensics—will play an increasing role in 21st-century courtroom discourse, policy, and decision-making. Full article

The Australian Human Rights Commission has claimed that recognising religious corporations as litigants in religious discrimination claims departs from international human rights law, which only protects the rights of natural legal persons. In this article we respond to that claim by arguing that under international law, Australia should protect the ability of religious groups to be litigants, including corporations. The International Covenant on Civil and Political Rights requires Australia to respect and ensure individuals have the right to manifest their beliefs in community with others, and that such communities are protected against discrimination on religious grounds. This requirement entails granting religious groups the ability to pursue legal measures to preserve the enjoyment of these rights by their members. Full article

The quality of healthcare varies significantly from one country to another. This variation can be attributed to several factors, including the level of healthcare professionals’ professionalism, which is closely linked to the quality of their education. Medical and healthcare education is unique in its need for students to learn and practice various clinical skills, algorithms, and behaviours for clinical situations. However, it is challenging to ensure these educational experiences do not compromise the quality of healthcare and patient safety. A simulation-based educational (SBE) approach offers a solution to these challenges. However, despite the widespread adoption of the SBE approach in medical and healthcare education curricula; its recognition for its high value among students, educators, and healthcare professionals; and evidence showing its positive impact on reducing risks to both patients and healthcare professionals, there is still an absence of a standardized approach and guidelines for integrating simulations, which includes determining when, how, and to what ex-tent they should be implemented. Currently, there is no regulation on the need for SBE integration in medical and healthcare curricula. However, the framework of this article, based on the results of the analysis of the legal framework, which includes a set of laws, regulations, principles, and standards set by various government, administrations, and authoritative institutions, will determine the fundamental aspects of the integration of the SBE approach that justify and argue the need to (1) incorporate simulation-based education across all levels of medical and healthcare education programs and (2) adhere to certain standards when integrating the SBE approach into medical and healthcare programs. This is an area that needs to be developed with the involvement of legal, health, and education experts. Full article

In this paper, I argue that the Committee on the Rights of Persons with Disabilities Guidelines on Deinstitutionalization, Including in Emergencies function as an instrument and template for reparative justice towards persons still in institutions and survivors of institutionalization. The Guidelines construct deinstitutionalization as a reparative process at both the systemic and individual levels, as well as calling for the creation of reparation and redress mechanisms. I examine the entire body of the Guidelines, highlight their reparative content, and point out where the text may fall short of this perspective and how the shortcomings might be remedied. This paper is grounded in the situation of psychiatric institutionalization and the concerns of people subjected to that system, emphasizing issues faced by this constituency and its human rights concerns for redress and legal and societal change. The issues addressed include the following: the strengthening of normative standards with regard to the abolition of psychiatric institutionalization and forced interventions and the obligation to immediately end these violations; a policy shift towards the de-medicalization of psychosocial disability; the implications of reparative justice in diminishing the role and authority of those that have operated institutions including the mental health system; the role of adult persons with disabilities as members of families and the role played by some family members in institutionalization; issues to be considered in designing reparations processes and mechanisms. Following some introductory remarks, this paper is structured to follow the outline of the Guidelines, quoting the text with interspersed comments and ending with a brief conclusion. Full article

Saudi Arabia boasts a diverse and abundant cultural heritage that reflects a fusion of pre-Islamic and Islamic civilizations, serving as a precious legacy for future generations. Confronted with the challenges arising from globalization and rapid development, preserving intangible cultural heritage has become increasingly challenging, particularly in the absence of comprehensive heritage policies. The initial steps toward conservation were taken in 1972 when legislation was enacted to protect historical and cultural sites. However, it was not until 2014 that a new law was introduced to address the gaps left by the 1972 law. Unfortunately, this legal protection predominantly centered on tangible aspects of cultural heritage, leaving the equally important intangible cultural heritage neglected and unprotected. This study aims to evaluate the existing legal mechanisms in Saudi Arabia for the preservation and protection of intangible cultural heritage. It identifies the existing deficiencies and obstacles in the current cultural heritage framework regarding the preservation of intangible cultural heritage in Saudi Arabia. Our analysis focuses on how Saudi Arabia aligns with the principles and guidelines established by the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage. Full article

When Hannah Arendt writes about the law, she does so as a political theorist, genocide survivor and critic of modernity. She also writes as a phenomenologist, which is to say, she is mindful not only that people create the law, but that law constitutes a people. In Origins, she calls attention to the importance of the rule of law in the emergence of totalitarianism. In On Revolution, she seeks a way of grounding political authority in something other than an Absolute. In the process, Arendt looks to another group of intellectuals who grappled with the nature of authority under conditions of modernity—the Early German Romantics. Romantic fragments are philosophical, poetic, even musical. For Arendt, the most highly valued fragments are historical because these fragments provide not only protection against totalitarianism but also a possible solution to the problem of authority. In this article, I explore Arendt’s interpretation of the Declaration of Independence as a historical fragment. She draws on a phenomenological approach to fragments, found primarily in the work of Rahel Varnhagen and Dorothea Veit-Schlegel, to create a resilient yet malleable basis for authority, thereby grounding political authority in concrete historical events, rather than in human nature. Full article

When it is realised meaningfully, barrier-free access enables pedestrians with disabilities to use streets without being impeded by non-existent or poorly maintained sidewalks, inaccessible overpasses or underpasses, crowded sidewalks, lack of traffic controls, lack of aids at street crossings, unsafe motorist behaviour, and poor signage and lighting. While Kenya has laws in place that are intended to facilitate barrier-free access, in reality, these laws are not implemented, resulting in the violations of rights of pedestrians in general, and pedestrians with disabilities in particular. Using the lived experiences of pedestrians with disabilities, this article reflects on the policy, legislative, and practical contexts which undermine access. It shows that despite the range of policy and legal instruments which Kenya has adopted or enacted to ensure the public in general can access streets, pedestrians with disabilities enjoy arising benefits only marginally. The article’s thesis is that continental policy and normative instruments and institutions may impel Kenya towards ensuring that pedestrians with disabilities have meaningful barrier-free access. Full article