Inequality at the Top of Tech: A Lack of Boardroom Gender Diversity

JOSHUA BUTCHER (with contributions from Samantha Johnston)

Der denkmalgeschützte Boardroom des Les Trois Rois by Katja Hasselkus
The image is available under Public License

Boardroom diversity has been a discourse of increasing notoriety over the past few decades. However, while the majority of scholarly attention has focussed on the aggregate level, little analysis has been specifically directed at the technology industry. This is an area of significance, not merely due to technology’s prominence as the biggest industry in the world, but more consequently because such imbalances in tech can lead to disproportionately serious consequences. These industry specific concerns are coupled with a recent resurgence of diversity legislation being introduced globally at the national level.

Inequality at the top of tech

Despite reported progress, there is a lack of boardroom diversity amongst the biggest technology companies. A primary quantitative analysis conducted for the purposes of this project confirmed this. The statistical analysis explored board composition on the companies on the Forbes Digital 100 which provides an annual ranking of the 100 biggest technology companies globally. Using only publicly available board composition data, it emerged that only a quarter (25.7%) of board seats for companies on list are held by women. Whilst this striking statistic indicates that women are underrepresented relative to society as whole, this percentage is in-line with the global average for female representation at board level which stands at 23.3%. The global average for female boardroom representation is widely considered dismally suboptimal and thus anything aligned with this low benchmark is equally insufficient. Particularly when considered in contrast to many developed economies such as New Zealand, France, and Norway where female representation across all sectors has reached 45.5%, 43.8% and 39.1% respectively.

Perhaps most strikingly, only one single company on the Forbes Digital 100 boasted more female representation than male; Vivendi, the French media conglomerate, which itself only had a marginal 6:7 male to female ratio. The remaining 99% of companies have boards dominated by men and a staggering 10% of companies still have all-male boards. These statistics unearth a frightening trend that, despite the constantly heralded progress being made towards gender parity, there remains significant gender inequality at the very top of the tech industry.

Why boardroom equality matters

Sustained academic arguments for boardroom inequality are almost non-existent. In contrast, there exists a plethora of rationales for boardroom equality that are not necessarily mutually exclusive. Ranging from the simplest doctrines of feminism and social equality put forward by the acclaimed historian and feminist Professor Mary Beard, to the quantitative business case idioms most notably posited by the distinguished Professor Susan Vinnicombe and colleagues. However, boardroom gender imbalance at the top of tech requires specific attention, not just because technology remains the biggest industry in the world by market cap, but because unlike in other industries such imbalances have the disproportionate possibility of perpetuating a society of structural inequality.

The world in which we reside is increasingly governed by algorithms defined and written by the biggest global tech companies. These codes influence almost every aspect of our lives from anything as simple as buying our morning coffee to getting a job or buying a house. Yet men account for 75% of the decision-makers at the very top of these companies, ultimately determining these algorithms and the long-term strategic direction of these corporate goliaths. This is a grave concern – particularly as evidence suggests technology designed by a skewed sample of the population will ultimately reflect that skewed perspective, leading to tangible consequences.

“[B]oardroom gender imbalance at the top of tech requires specific attention … such imbalances have the disproportionate possibility of perpetuating a society of structural inequality.”

JOSHUA BUTCHER, LLM STUDENT AT NEWCASTLE LAW SCHOOL

Thus, as technology’s influence on society continues to proliferate exponentially, the disproportionately devastating consequences of inequality at the top of the biggest companies in the industry becomes ever more significant. Whilst the impact on a morning coffee routine is unlikely to cause much anguish, the same cannot be said for the other examples given above. It is therefore imperative that more academic attention is paid to this issue and, above all, meaningful progress is made towards greater boardroom diversity in the technology industry.

Addressing the imbalance

Most scholarly attention has focused on aggregate level approaches to unilaterally improve female boardroom representation. This is echoed by the empirical data which shows striking similarities between the level of female representation on boards of companies on the Forbes Digital 100 from the same country.[i] This was true across all nations represented, indicating a correlation between the country of incorporation and the level of female boardroom representation. Furthermore, the variation in the level of female representation between different countries was significantly higher than that within each country.[ii] This is unsurprising given the cultural and regulatory differences of each jurisdiction. However, it does affirm that boardroom representation in the tech industry does not exist in a microcosm immune from outside influences.

So what might explain this disparity in female representation between countries? Whilst a myriad of regulatory instruments exist at the national level, two distinct approaches are routinely adopted to address the boardroom gender imbalance that invariably exists. By and large, countries either opt for a neo-liberal voluntary target approach (boastfully first employed by the UK) or a hard legislative mandatory quota alternative (first introduced by Norway in 2008). Whilst the efficacy of the two approaches is a voraciously contested discourse, there are certainly merits and drawbacks to each.

Considering the companies on the Forbes Digital 100 list, it is interesting that the countries that adopted mandatory quotas typically have higher levels of female boardroom representation. These include, but are not limited to, France, Germany, and Australia whose average female representation level sits at 44.2%, 42.3% and 41.7% respectively, exceeding the global industry average. In contrast, female representation on company boards from countries taking a voluntary approach varied far more. From the particularly low levels seen in China, Mexico, and Japan (where average female representation sits at a dismal 7.4%, 7.7% and 11.5% respectively), to the much better levels of female representation seen in Canada, the Netherlands, and the US (which stand at a much loftier 37.5%, 32.4% and 31.9% respectively).

Whilst it is therefore difficult to statistically dispute the efficacy of the mandatory quota, it is vitally important to iterate that these statistics should not be the only measure of success when it comes to boardroom diversity. Representation statistics, whilst providing a useful indicator to monitor progress and make comparisons, do oversimplify boardroom diversity to figures which arguably overlook elements such as the meritocracy of appointments and tokenism. Whilst these distinct approaches are employed at the aggregate level, it is interesting to observe how different legislative approaches appear to be impacting the technology industry.

Legislation in Silicon Valley and the significance for big tech

One common characteristic of the two approaches is that both are applied unilaterally. The technology industry has not faced disproportionate scrutiny from a legislative standpoint, but a recent regulatory amendment in California has arguably altered this. California introduced Senate Bill 826 in 2018 and in so doing implemented the first mandatory quota in the US. This is a proportionally progressive gender quota requiring publicly traded companies in the state to – by the end of 2021 – have at least one, two or three female board members depending on their size, with non-compliance leading to significant fines. It is of note that California extended its mandatory quota approach in 2020 to also include other underrepresented communities.

Whilst this quota has been imposed indiscriminately at the aggregate level, California’s uniquely high concentration of technology companies could result in an especially significant impact on the level of female representation in the technology industry. California is home to almost one-fifth (19%) of the Forbes Digital 100 list. This is by far the highest concentration of big tech companies into a single forum. Except for the US more generally, of which California alone accounts for almost half (48.7%) of the companies on the list.

In the few years since Senate Bill 826 passed into law, female representation in California across all industries has increased substantially (by 66.5% between 2018 and 2020 alone). However, when we consider the companies on the Forbes Digital 100 specifically, the average level of female representation for companies in California was only 0.6% higher than the level of female representation in the tech industry across the US. This might suggest that the mandatory quota is not progressive enough to have a significant impact on the technology industry. This is reinforced by the fact that, at the time of writing, only two companies out of the nineteen on the list need to take action before the end of 2021 in order to adhere to the regulation. In contrast, as of 2020, only 183 of the 650 public companies in California actually met the 2021 requirements, meaning that whilst Senate Bill 826 in its current form is arguably not progressive enough to significantly impact big tech, it is conversely too extreme for the majority of companies in the aggregate.

Despite this, California must be applauded for taking decisive action and encouraging progress (however small) towards greater boardroom diversity, even if it has not significantly impacted big tech just yet. The coming months will be particularly interesting as the December 2021 deadline approaches. Whilst there is clearly a significant way to go towards gender equity in the technology industry, progress is being made – and although the ultimate success of this legislative provision still remains to be seen, it is entirely plausible that such provisions will be used to bring about the significant change that is needed in the future.

[i] Namely, relatively low standard deviations averaging 0.079.

[ii] This returned a relatively high standard deviation at 0.142.

Joshua Butcher IS An LLM student at Newcastle Law School, specialising in International Commercial Law. this blog post is based on research commissioned by the Newcastle-Pittsburgh Summer Research Project under the supervision of Dr Elliot Winter (Summer 2021).

A World Divided: Will we ever see regulation on the use of autonomous weapons systems?

SAMANTHA JOHNSTON

In a world of ever-developing technology, it is no surprise that weapons used in warfare have also advanced. Years ago, the use of weapons was simple – a person wields a sword and cuts down another in front of them. Today, however, it is entirely possible to target an enemy that is hundreds of miles away. In the near future, it might be possible to go a step further and destroy a target using an autonomous weapons system (AWS), defined by one scholar as ‘a weapon system that, based on conclusions derived from gathered information and preprogramed constraints, is capable of independently selecting and engaging targets’. This blog post will discuss the issues the international system faces in attempts to regulate autonomous weapons systems and will argue that, given the current climate, there is likely little to be done in the near future.

International disagreement as a sticking point for change

Autonomous weapons technology has proven to be a major concern in international law, with the Campaign to Stop Killer Robots – comprised of 100 NGOs in 54 different countries – calling for regulation of autonomous weapons. In 2018, the UN Secretary-General described AWSs as politically unacceptable and morally repugnantand called for an outright ban. However, in a world divided by countries seeking to ban AWSs and others looking to advance their military advantage, introducing practical regulations to govern AWSs seems almost impossible.

The State parties to the UN Convention on Certain Conventional Weapons (CCW) delegates policy competence over AWSs to the Group of Governmental Experts on Lethal Autonomous Weapons (GGE of LAWS), who have seemingly done little to progress discussion over the years. It is no surprise how little has been achieved when one considers the responses from countries around the world. There are many who are eager to ban or limit the production and use of AWSs, but there are a select few nations that object to the proposed initiatives.

The likes of the United States, the Russian Federation and Israel disagree with suggested methods of regulation and demonstrated their disagreement through attempts to stall discussions at the 2019 GGE meetings. As highlighted by Reeves, Alcala and McCarthy, there are several hurdles to overcome in developing regulation for AWSs, where States are likely to disagree. For example, States define AWSs differently and there may be great difficulty in settling on one international definition. Given that the CCW operates on a unanimous consensus basis, it is unsurprising that the prospects of a mandate on AWSs have failed to be realised in the face of enduring disagreement between the State parties.

Halting development: why do some States oppose regulation?

So why have attempts to regulate AWSs been halted by certain states? The answer may be that lessons from history have not been learnt. Acheson has previously argued that the mention of ‘military significant states’ within the CCW preamble is reminiscent of the struggle to regulate nuclear weapons, where States that possessed nuclear weapons ‘held an iron grip on what was considered credible and realistic’ in debate. Although a good many would argue that AWSs are required for defence and the prevention of terrorism, these arguments ultimately boil down to military advantage. It would be over-simplistic to argue that the pursuit of military advantage is, on the whole, a bad thing. However, the difference with AWSs is the dilution of direct human involvement in warfare.

“There seems to be a great divide between States who wish to prioritise morality and ethics and States who wish to prioritise military advancement.”

SAMANTHA JOHNSTON, PGT STUDENT AT NEWCASTLE LAW SCHOOL

Some States have argued that AWSs are capable of making more accurate decisions than humans and, as such, this potential increase in effectiveness has rendered some States less willing to introduce restrictive regulation. However, AWSs do not possess the human appreciation of morality, nor a human conscience. AWSs may well be able to track down a target and eliminate them without the need of human intervention, but an automated system would not be able to analyse a situation like a human could. If the target’s situation had changed, would the autonomous weapon appreciate and understand this? If a target is no longer a threat but that information is only learnt when the weapon faces the target,

would the automated weapon understand the change in circumstances? If the programming is not changed, then it would still destroy the target. A human, however, may be better placed to process the change in scenario and thus act accordingly. Many have argued that AWSs do not have the capacity to handle the verification (‘checking that the targets are legitimate’) stage of precautionary procedural rules. As examples, Human Rights Watch has argued that ‘fully autonomous weapons would not possess human qualities necessary to assess an individual’s intentions’ by understanding ‘an individual’s emotional state, something that can only be done if the soldier has emotions’. McFarland has also stated that AWSs ‘may not be trusted… and may need input from a human operator to assess whether the target is a valid military objective…’. Winter, however, argues that in practice, AWSs may be able to verify the status of the target better than another human, assuming advances in AI mean that machines can be imbued with ‘a high degree of the necessary contextual sensitivity’ needed to handle the verification stage. If States are more concerned about the efficiency of warfare than they are the morality of warfare, then any international regulation on the use of AWSs will struggle to develop.

Will we ever get there?

Calls for regulation, restrictions or bans are mounting, especially following recent use of AWSs in Libya. There have even been reports of a rogue drone pursuing and attacking its target without instruction, although the legitimacy of this is questionable seeing as nothing has been published by the UN to the public. Even so, it is clear that there is major concern in the international sphere over the production and use of AWSs, yet the international community is still far from reaching an agreement over regulation.

There seems to be a great divide between States who wish to prioritise morality and ethics and States who wish to prioritise military advancement. In line with international law, States cannot be bound to agreements without their consent, therefore a treaty separate to the UN or the CCW would be redundant if the States of concern do not sign up to it.

Unfortunately, the CCW will not see any additional laws concerning autonomous weapons if there is not unanimity. The only way forward seems to be through the UN, however, the General Assembly already delegated discussions to the CCW, and the Security Council is permanently comprised of countries that oppose bans or restrictions. For example, the UK stated that regulation ‘would not have any practical effect’ and the US stated they ‘cannot accept’ attempts to regulate AWSs. This demonstrates that it is entirely likely that a veto vote would be put forth. The path to regulation appears blocked by the minority, despite a valiant push from the majority.

SAMANTHA JOHNSTON IS A PGT STUDENT AT NEWCASTLE UNIVERSITY LAW SCHOOL. THIS BLOG POST IS BASED ON RESEARCH THAT SAMANTHA HAS UNDERTAKEN AS PART OF THE NEWCASTLE-PITTSBURGH SUMMER RESEARCH PROJECT (SUMMER 2021).

Why Law students should get involved with mediation

NADIA ASHBRIDGE

Most UK universities and law schools operate with the support of a Law Society, with a Mooting team and/or competition integrated within it. Involvement in both is oftentimes central to a law student’s academic, practical and personal development, and is regularly cited as contributory factor in that student’s success in landing graduate opportunities, including pupillage and training contracts. Newcastle University has been one of the frontrunners in getting law students involved in mediation activities, with Professor Bryan Clark lending his prolific expertise as a Commercial Law lecturer to students at all levels within the school.

I was delighted to have been selected as part of an initial 12-person trial-run mediation team back in October 2019, and have since had the privilege of working, not only with Bryan and my peers at Newcastle University, but also with students, lecturers and coaches internationally. The experiences I have gained have been central to my decision to pursue a career in commercial dispute resolution. However, I would recommend any and every student to get involved, regardless of whether or not you have an interest in commercial disputes, as there is an opportunity to develop invaluable skills, unique to the practice of mediation.

I first became involved as a budding family lawyer, having learnt about the increased use of mediation in family disputes. However, it has since become clear to me that the value of mediation is not limited to those cases, and is also used on an international scale, with unfathomable amounts of money involved (or at least to me, as a student on her last tin of baked beans!).

“I would recommend any and every student to get involved, regardless of whether or not you have an interest in commercial disputes…”

Nadia Ashbridge, Newcastle Law School Mediation Team

Despite us all having an image in our minds about the aggressive and adversarial nature of commercial disputes (personally, I blame ‘Harvey Specter’ from Suits), involvement in the mediation activities at Newcastle Law School has taught me that this perception, at least in some contexts, is misguided. For proof of this, one need only look to the websites of many of the top-tier international commercial law firms, whose services now include Alternative Dispute Resolution (including mediation). With mediation becoming something of a commercial norm in many cultures, it is my opinion that any student interested in an international legal career should get involved in mediation at Newcastle University.

Over the past year, I have had the privilege of competing in a number of international competitions, the perks of which are not limited to adding another ‘experience’ to my LinkedIn profile. Naturally, the pandemic meant that there were a few technical and practical difficulties that we had to overcome in order to train and compete effectively, especially as, pre-March 2020, we had been training face-to-face and could easily engage in role-plays and practice runs with guidance and feedback from Bryan. However, come September 2020 (i.e. when we’d all, for the most part, figured out how to use the Zoom ‘mute’ button), we reconvened virtually, taking on a couple of teammates with no previous mediation experience.

We have since trained at least twice a month, working through hypothetical problems (both commercial and non-commercial), whilst alternating roles within the role-play: mediator, mediation advocate and client. Often the training has been in the run-up to a specific competition, and we have therefore learnt to adopt different styles and practise a range of negotiation tactics, both in line with the competition rules and in anticipation of the different cultural attitudes to mediation that we might face.

To date, I have competed in four international competitions (most of which spanned across several days): the SIMI International Mediation and Advocacy Competition, Lex Infinitum International Mediation Competition, MediateGuru Virtual International Mediation Competition and, most recently, the longest-standing international competition of this kind, the INADR International Law School Mediation Tournament. Beyond the experience of competing, the real highlights of these events are the opportunities to learn from (be trained by) top mediators, negotiators and advocates in their respective fields, as well as the chance to connect with likeminded students across the world. While much of the world was in lockdown, there was a notable irony in being able to chat to students from Singapore, Taiwan, the US, India, Russia, etc between rounds – a unique experience in my nearly-four years at university.

#WEARENCLLAW We are very proud of Ben, Nadia Patrick & Heloise the @NCLLAWSCHOOL Mediation Team at the @SIMIchat Mediation Competition in November. They held their own against teams from across the globe!

While the majority of the competitions require participants to rotate through roles, a particular highlight for me was the Lex Infinitum International Mediation Competition, where I undertook the role of ‘mediator’ across the whole week. This afforded me a fantastic chance to develop skills within an unbelievably short time period, reflecting on the feedback and tutelage of hugely experienced judges and coaches. It was an honour to have placed 3rd overall, competing amongst 18 fantastic participants. However, I am most excited to have been awarded the Dr. M.R.K. Prasad Lex Infinitum Incentive Award, presented to the best international mediator in the preliminary rounds. The reward: the waiving of registration fees and a substantial travel allowance for next year’s participants. I am so excited to follow the Newcastle University team over the next year and look forward to hearing about what they get up to in Goa, India (Coronavirus permitting) in next year’s Lex Infinitum competition.

As you can likely tell, I am a huge advocate for mediation, and for the involvement of students in mediation activities whilst at Law School. On a purely academic level, my position on the Newcastle Law School Mediation team has led to a greater depth of understanding within my Commercial Law module, part of which is focused on commercial disputes. So, to any struggling Comm Law students – get involved in (what will hopefully soon be) the Mediation Society!

And to anyone whose particular academic interests do not include the niche commercial topics of agency law, product liability and civil litigation, I would still urge you to at least try mediation. I have developed skills in negotiation and collaboration within both a legal and practical context, which I could never have learnt whilst Mooting (or in any other activity). As I have (perhaps over-enthusiastically) outlined above, the scope of international involvement with the mediation activity at Newcastle is fantastic, setting you up with a more culturally aware and global mindset – perfect for anyone pursuing an international career.

And finally, it’s a bit of fun – you get to meet new people, apply the soft skills learnt throughout your law degree to practical scenarios, and grow in confidence! So, get involved!

Introduction to the North East Law Review

The North East Law Review (NELR) is a student-led review established by Newcastle University’s Law School in 2013. This year, for the first time, the NELR will be producing regular videos alongside its yearly volumes and blog posts. In these videos, we will be inviting a wide range of guests, from academics to legal professionals, to speak with us on a variety of issues and debates facing the law.

If anybody is interested in speaking with us on the review, please feel free to get in touch with Becca (R.bestley@newcastle.ac.uk) or Nathan (N.cooper@newcastle.ac.uk) to arrange.

Injustice behind the Bar and the bars for women. Review on Helena Kennedy’s Eve Was Framed (1993)

ARINA KOKINA

“No man is above the law, and no man is below it…” says Roosevelt, reinforcing the importance of upholding the Rule of Law. However, Helena Kennedy’s Eve was Framed (Vintage 1993) will show you that prejudice could be stronger than the rule of law itself, bringing injustice to someone who is “below [the law]” – to women.

This book will explain to you how the British Justice system fails women. Helena Kennedy QC (Baroness Kennedy of The Shaws, QC) uses an approachable vocabulary that makes sense to those without legal knowledge. In the book, she explains the basics of the work of the British law courts, hence I recommend this book to everyone interested in politics, feminism, and to everyone who wants to research the problem of inequality. Such brief basics will be helpful to a first-year law student since it helps you to approach law in a more rounded way.

As a feminist, Kennedy does not talk about women in a general term. She introduces you to a list of minorities oppressed by the legal system (black women, poor women, women with mental health conditions). Moreover, Kennedy shares her balanced point of view with a recall of the real-life cases as well as her private cases – these allow an even greater insight . It is important to mention the use of statistics. In my opinion, one great example could be in the first chapter, where she compares the “escalation of the numbers of women being sent to prison” in the early 90s and the start of the 2000s. The given statistics will convince you of the existence of prejudice and double standards for women everywhere in the court: whether it is behind the Bar or the bars. It is indeed shocking that double standards can affect the outcome of the trial and a woman who gets prosecuted, might suffer an even harsher sentence than her male counterparts for equivalent crimes only because she came to a court with a deep v-cut dress.

If you are afraid that this book will portray women as inevitable victims of the British judicial system and portray men as sexists, start reading this book now because this is something completely different! Kennedy accuses women as much as men and talks equally about female criminals and female victims. Her final questioning of whether women want equality with men or to be treated fairly will certainly stay with you. Published in 1993, Eve Was Framed does not fully reflect today’s society and justice system, mainly because the laws have been updated and the awareness of the inequality among people has significantly increased in comparison to the 90s. However, some problems that Kennedy addresses are still relevant to this day. It is important to understand that the problem runs deeper than the British courts simply being ‘sexist’ towards women, hence such serious matters require far more time to be dealt with.

I think overall Eve Was Framed is a successful book that should be read by everyone, regardless of gender and age. This book deserves a wider readership which could then trigger essential differences in the British legal system.

Arina Kokina won first prize in the Newcastle Law School Induction Review Blog competition.

Join the North East Law Review: Committee Positions Available

Introducing the Newcastle Law School Journal and Blog

North East Law Review Journal

Web: https://research.ncl.ac.uk/nelr/

Established in 2013, the North East Law Review is a student-led journal and is an opportunity to gather fellow students and staff who are passionate about law. We are looking to relaunch the North East Law Review (NELR) in 2020 and have exciting plans including Sponsored Essay Competitions. The NELR is currently recruiting a committee of Editors to ensure its continued operation and is an excellent opportunity for students to get involved in the production of legal research.

North East Law Review Blog

Web: https://blogs.ncl.ac.uk/nelrn/ Twitter: https://twitter.com/nelr_ncl

Associated with the North East Law Review is the NELR Blog which is designed to be a space for the exchange of ideas between independent thinkers in law. The NELR Blog is currently recruiting a committee to ensure its continued operation, production of content and smooth running and is an excellent opportunity for students to get involved in shaping and furthering the debates that exist in law currently. In addition to this, the Blog is also currently welcoming contributions and submissions from staff and students across Newcastle on any topics of interest.

The type of content NELR will be producing content includes, but is not limited to:

  • Blog posts on areas of law (1,000 – 2,000 words)
  • ‘Debates in Law’
  • Case Summaries of latest cases
  • Panel Discussions
  • Seminar Recordings
  • Podcasts

If you are interested in running for the Committee to help produce these or similar sorts of ideas, if you are interested in writing or just want to immerse yourself more in your studies, then please e-mail a 250 word application and a full CV to James Merryweather and Colette Monahan (j.merryweather@newcastle.ac.uk and c.monahan@newcastle.ac.uk). The deadline for applications is the 18th September after which we will be looking to start driving the NELR forward. The available positions can be found below, and the number of available places can be increased if there are good candidates.

North East Law Review Committee

Position Available Tasks
Artwork and Graphics x2 Works with all editors, Administrative lead,
and writers to create posters/artwork/graphics for posts
Communications Officers Advertises all content on social media

North East Law Review Blog

Podcasts Editor Organises and oversees production of podcasts.
(E.g. Interviews, discussions, Q and A’s etc.)
Videos Editor Organises and oversees production of videos
NELR Blog Editors x 2 Organises the production of academic law blog posts;
peer-reviews blogs. Includes debate pieces.
Case Summary Editor Organises the production of NELR case summaries posts
(i.e. recent UK Supreme Court or Court of Appeal
cases); peer-reviews case summaries

North East Law Review (Journal)

NELR Editor (UG) x 2 Edits journal submissions
NELR Editor (PGT) x 2 Edits journal submissions
NELR Editor (PGR) x 2 Edits journal submissions

From ‘Rhetorical’ to ‘Juridical’: Human Rights Instruments Addressing Climate Change Based on the Development of Environmental Rights

Li Wang

This picture is taken from: www.pexels.com

The relationship between human rights law and international environmental law is by no means straightforward. Human rights law, characterised by ‘absolutes and universals’, seems to contradict with international environmental law, which bases itself on flexibility and reciprocity. However, due to the inherent linkages between human rights and environmental protection, human rights law and international environmental law seem to show a tendency to mutual accommodation, particularly against the climate change backdrop. With the emergence and development of environmental rights, either substantive or procedural, climate change, as the most challenging environmental concern in our age, seems to be able to be addressed in the legal framework of human rights. We can see that regional customary procedural environmental rights have developed, especially in Europe, which may further contribute to the emergence of substantive environmental rights both regionally and internationally. Delineating a legal framework for climate change litigation on the ground of human rights infringement could help to address the climate change problem.

Rhetorical?

As a ‘common concern of humanity’, climate change has been primarily addressed through inter-state negotiations on multilateral environmental agreements, including the UN Framework Convention on Climate Change and the Kyoto Protocol, which call for global solidarity and emission reductions. As the slow progress in political negotiation has frustrated environmentalists, human rights approaches, are becoming more attractive.[i] Reasons for articulating a human rights perspective on climate change can be explored from the lexical, pragmatic and moral levels. With a ‘lexical priority’,[ii] the ‘human rights’ terminology may add ‘normative strength’ to spur countermeasures when used in the climate change context.[iii] The notion of human rights is considered as a perfect response to the far-reaching climate change issue ‘at least at a rhetorical level’.[iv] Similarly, a human rights approach to climate change provides a ‘human face’ to those marginalised and vulnerable groups, which in turn can raise empathy and thus facilitate effective solutions to this global issue.[v] Moreover, human rights stand as the moral threshold to which people are entitled.[vi] With this moral shield, Simon Caney emphasized the normativity of the  ‘rights’ approach by claiming  that certain fundamental human rights threatened by climate change are not allowed to be derogated, such as the right to life, the right to food, and the right to health of the environmentally vulnerable communities, which are easily affected by the climate change risk.[vii]

However, these enticing human rights arguments, which imply ‘rights as trumps’,[viii] have oversimplified the relatively complicated environmental issue. Human rights approaches fail to consider the ‘need for collective action’[ix] in tackling climate change problem. In practice, solutions to international environmental issues require states cooperation and collaboration. While states remain the principal subject of international law, emphasis on ‘individual behaviour beyond state borders’ to solve an environmental problem of global nature is unrealistic.[x] Meanwhile, the ‘more legalistic nature’[xi] of human rights law, which indicates its tendency to prosecution when injustice occurs, might narrow the scope for invoking the law.[xii] As John Knox notes, not all infringements amount to the breach of legal obligations.[xiii] Under the climate change scenario, where the question ‘to what degree the violation of human rights caused by climate change can be triggered’ remains controversial, the application of human rights law to climate change damage faces considerable obstacles. This tricky problem can also be identified in the High Commissioner for Human Rights (OHCHR) report, which only recognizes climate change as an ‘inherently global threat to human rights’, but refuses to conclude that ‘climate change itself is a human rights violation’.[xiv] Therefore, the utility of human rights instruments seems to be ‘rhetorical rather than juridical’.[xv]

Shift to Juridical?

However, the growing relationship between human rights law and international environmental law does provide possibilities for the justiciability of environmental issues, including the issue of climate change. The safeguarding of the environment is necessary for the very existence of human beings and the full enjoyment of human rights. As noted by Weeramantry in the GabeTcovo-Nagymaros case, ‘protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself’. Undoubtedly, environmental degradation poses a direct or indirect threat to the enjoyment of human rights. Anthropogenic climate change, in particular, has ‘implications for the effective enjoyment of human rights’. To be specific, climate change infringes a series of human rights, including the rights to life, food, water, health, housing and self-determination. Therefore, climate change, as a massive environmental issue, is well grounded to be granted a human rights dimension.

The common ground shared by human rights and environment can be identified in legal documents at the national, regional and international levels. Explicit environmental rights have been codified in over one hundred countries’ constitutions. Notions like ‘right to a general satisfactory environment’ and ‘rights to live in a healthy environment’ can be identified in regional human rights treaties like the African Charter of Human and People’s Rights and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights. Though criticized as weak, these provisions can be argued to indicate an infancy stage of substantive environmental rights. Notwithstanding the fact that no substantive environmental rights have been embedded under international law (there are no such indications of environmental rights in the 1948 Universal Declaration of Human Rights), principle 1 of the 1972 Stockholm Declaration asserts the necessity of adequate environment protection to the enjoyment of basic human rights. Despite their non-legally binding character, it is argued that articulating such a right will contribute to the creation of a substantive right to a healthy environment. It could be expected that once such an environmental right is recognised under international human rights law, climate change, with the increasing linkages between human rights and climate change reiterated by the UN General Assembly and the specialized agencies, may constitute a violation if its threat to the rights of the victims amounts to a breach of legal duty.

The convergent relationship between human rights law and environmental protection can also be verified in the jurisprudence of the increasing environmental caseload by human rights tribunals. Noteworthy are cases like López Ostra, Fadeyeva, Öneryıldız, Moreno and Taşkin from the European Court of Human Rights (ECtHR), which demonstrate governments’ positive obligation to ‘regulate environmental risks, enforce environmental laws or disclose environmental information’[xvi] based on the Court’s creative interpretation of Article 2 ‘right to life’ and Article 8 ‘right to respect for private and family life’. Furthermore, in Hardy & Maile v. The United Kingdom, the Court agrees that when there exists a risk of explosion, the obligation arises even though the potential harm hasn’t been materialised. In Budayeva v. Russia, the court found that Russia had failed to protect the inhabitants’ right to life due to a local authority’s inaction in the foreseeable mudslides disasters. Moreover, in Tătar v. Romania, the Court specifies the state’s obligation of invoking the precautionary principle for the first time in an environmental issue. In this light, it is fair to say that though there is no reference to substantive environmental rights under the European Convention on Human Rights, the environmental case law developed by the ECtHR indicates a national authority’s obligation of procedural environmental safeguards. It may be further argued that such procedural environmental rights supported by the Court have formulated a regional customary law in Europe,[xvii] which has reinforced the linkages between human rights and climate change.[xviii] As mentioned above, climate change has potential threats to the ‘full enjoyment of human rights’;[xix] specifically, its adverse effects such as the more frequent extreme weather, including hurricanes, droughts, floods and heatwaves, which may threaten ‘the right to life’. Therefore, when making decisions and adopting policies related to climate change, governments are expected to bear the notion of human rights in mind and have an obligation of due diligence. [xx] In this regard, procedural rights, as Kravchenko observes, can make great contributions to combating climate change.[xxi]

Apart from courts’ jurisprudence, the well-established procedural rights in multilateral environmental agreements (MEAs) are noteworthy, particularly, the UNECE Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). In spite of recalling Principle 1 of Stockholm Declaration in its preamble, which claims human’s fundamental right to live in a qualified environment allowing dignity and well-being, the Aarhus Convention actually elaborates Principle 10 of the 1992 Rio Declaration by focusing strictly on procedural rights in its content: individuals are granted appropriate access to environmental information, encouraged to participate in environmental decision-making process, and allowed effective access to judicial redress and remedy.[xxii] Despite the endorsement of procedural environmental rights, the Convention is criticised for it ‘stops short, however, of providing the means for citizens directly to invoke this right’.[xxiii] Nevertheless, it should be asserted that the Aarhus Convention has largely extended environmental rights and the corpus of human rights law.[xxiv] As Boyle suggests, ‘procedural rights are the most important environmental addition to human rights law.’[xxv] More importantly, the Aarhus Convention’s doctrine on procedural rights, together with its influence in the jurisprudence of the ECtHR, adds persuasiveness to the argument of procedural environmental rights development as a customary law in Europe, which implies a moving away from a state-focused approach to addressing environmental issues. Additionally, both the Convention and the jurisprudence can be interpreted as facilitating the emergence of a substantive environmental right as a result of the virtuous circle that exists within substantive and procedural rights: a high degree of compliance with procedural environmental duties contributes to the creation and compliance of substantive environmental obligations. Policies and decisions related to the anthropogenic climate change, if made with the participation of the relevant stakeholders, will ensure the compliance of procedural rights to an adequate environment and further contribute to the establishment of substantive environment rights in a broader level. Therefore, the development of regional customary procedural environmental rights and the emergence of substantive environmental rights may broaden the scope for addressing climate change under human rights law. Consequently, there is a possibility of climate change litigation on the grounds of human rights violation. In this sense, both the regional customary procedural rights and the emerging substantive environmental rights, may add a ‘juridical perspective’ to the climate change problem.

To conclude, a convergent relationship between human rights law and international environmental law has developed based on the inherent linkages between human rights and environmental protection. Despite limited substantive environmental rights under the general international law, the enshrinement of substantive rights in national constitutions and the adoption of procedural rights in ECtHR environmental jurisprudence as well as in the Aarhus Convention, which can be justified as a regional customary law in Europe, may add impetus to the creation of a substantive right to a decent environment at the international level. In respect to the climate change problem, the development of such procedural environmental rights and moreover, the emergence of the substantive environmental rights are crucial as the notion of environmental rights provides the potential to address this unprecedented challenge, which is confronting the whole of humankind currently, in a both rhetorical and juridical way.


[i] Ole W. Pedersen, ‘Climate Change and Human Rights: Amicable or Arrested Development?’ (2010) 1(2) Journal of Human Rights and the Environment 236, 240

[ii] Simon Caney, ‘Climate Change, Human Rights and Moral Thresholds’ in Stephen Humphreys (ed), Human Rights and Climate Change (CUP 2010)

[iii] Stephen Humphreys, ‘Introduction: Human Rights and Climate Change’ in Stephen Humphreys (ed), Human Rights and Climate Change (CUP 2010)

[iv] Amy Sinden, ‘Climate Change and Human Right’ (2007) 27(2) J Land Resources & Envt. L. 255

[v] Stephen Trully, ‘Like Oil and Water: A Skeptical Appraisal of Climate Change and Human Rights’ (2009) 15 Australian International Law Journal 213

[vi] Caney (n 2) 72.

[vii] ibid 69.

[viii] Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978)

[ix] Daniel Bodansky, ‘Introduction: Climate Change and Human Rights: Unpacking the Issues’ (2010) 38 GA.J.INT’L & COMP.L. 511, 524

[x] Pedersen (n1) 242.

[xi] Bodansky (n 9) 515.

[xii] Stephen Humphreys, ‘Competing Claims, Human Rights and Climate Harms’ in Stephen Humphreys (ed), Human Rights and Climate Change (CUP 2010) 39

[xiii] John H. Knox, ‘Climate Change and Human Rights Law’ (2009) 50 VA. J. INT’L L. 163

[xiv] John H. Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33 Harvard Environmental Law Review 477

[xv] Alan Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 EJIL 613, 619

[xvi] ibid 615.

[xvii] Ole W Pedersen, ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?’ (2008) 21(1) Georgetown Int’L Envt. Law Review 73

[xviii] Pedersen (n 1) 247.

[xix] United Nations Human Rights Council Resolution 7/23 (2008)

[xx] Pedersen (n 1) 242.

[xxi] Svitlana Kravchenko, ‘Procedural Rights as a Crucial Tool to Combat Climate Change’ (2009) 38 Ga. J. Int’l & Comp. L.613, 648

[xxii] Patricia Birnie, Alan Boyle, Catherine Redgwell, International Law & the Environment (3rd edn 2009 OUP) 274

[xxiii] Tim Hayward, Constitutional Environmental Rights, (2005 OUP) 180

[xxiv] Birnie, Boyle and Redgwell (n 22) 274.

[xxv] Boyle (n 15) 616.

Li Wang is a PhD student at Newcastle Law School. Li’s research interests lie in the field of environmental rights, environmental constitutionalism, international environmental governance, and climate change.

The ICC’s investigation into Afghanistan: a watershed moment for the Court? One can only hope.

Ethan Gren

Introduction

The US has recently authorised the use of sanctions against the International Criminal Court (ICC) in response to the authorisation of an investigation into Afghanistan for alleged crimes against humanity and war crimes. Other state parties to the Rome Statute, in the form of a collective statement, have condemned these sanctions and reaffirmed their support for the Court. This provides ample opportunity to reflect on what this might mean for the ICC going forward. Whether this recent illustration of state support might constitute a watershed moment of changing state attitudes towards the Court in the future, cannot be predicted with certainty. Indeed, with the presence of potent considerations militating against such a moment, for example, the increasing tendency for state rhetoric to be unaccompanied by meaningful action, and that not all states party to the Rome Statute have declared their support, perhaps the best we can do is only hope for such a moment. A watershed moment would have significant implications in terms of boosting the Court’s effectiveness and perceived legitimacy.

The ICC

The ICC was created on the 1st July 2002, by the widespread signing and ratification of its founding treaty, the Rome Statute 1998. The ICC is a remarkable achievement; it is the world’s first and permanent international criminal court designed to try and punish the perpetrators of some of the worst crimes known to humanity. Its jurisdiction extends to genocide, crimes against humanity, war crimes, and crimes of aggression (Rome Statute 1998, article 5). Since its inception, the Court has made invaluable contributions to international criminal justice by securing high-prolife convictions, such as the recent conviction of Bosco Ntaganda for war crimes and crimes against humanity in the Democratic Republic of Congo. The Court currently has 13 situations under investigation, and 28 ongoing cases, with one of its most recent investigations being the primary subject of this blog post, the investigation into Afghanistan for crimes against humanity and war crimes.

The situation in Afghanistan

On the 5th March 2020, the Court authorised the current prosecutor, Fatou Bensouda, to commence an investigation into the Islamic Republic of Afghanistan for alleged crimes against humanity and war crimes committed since May 2003. They include, inter alia, murder, extrajudicial killing, cruel treatment, and intentional attacks against civilians,and are alleged to have been perpetrated in the context of the continuous armed conflict between pro-Government forces and anti-Government forces, such as Afghanistan military forces and the Taliban. The prosecutor also alleges that war crimes have been committed by the US military and CIA personnel against individuals in Afghanistan detention facilities, including torture and cruel treatment, rape, and serious infringements of personal dignity. These were allegedly perpetrated in order to extract information from the Taliban/Al Qaeda who may have had links or involvement with the 11 September 2001 attacks, as well as for information about the group generally such as locations and planned attacks. Hitherto, investigations into possible crimes committed by the US military have been exceedingly difficult because the US it not a party to the Rome Statute. The ICC can exercise jurisdiction in this case because the alleged conduct occurred in Afghanistan, a state party. This is a positive development itself, in that the Court is continuing to expand its areas of investigation and striving to end impunity for these egregious crimes. The US has responded in a very hostile manner, through making various threats and imposing sanctions on the Court. When considering the background context and history between the Court and the US, their belligerent reaction comes as no surprise.

The US’s sanctions

It is no state secret that the US is not a fan of the ICC, nor international law more generally. Besides not being party to the Rome Statute, they are not party to major international human rights treaties such as the International Covenant on Economic, Social and Cultural rights, and although they have signed and ratified the International Covenant on Civil and Political Rights, they have refrained from signing its first optional protocol, which allows individuals to make complaints of violations under this treaty. For the US, safeguarding sovereignty is their central concern and any attempts to encroach upon it is met with fierce resistance. The US’s reluctance to join the ICC stems from a fear that they will cede jurisdiction to the Court, which will lead to US servicemen being prosecuted.[i] In particular, a fear their military personnel might be prosecuted by an unrestrained and unaccountable prosecutor for their ‘anti-terrorism’ campaign post-9/11 which is alleged to include, inter alia, illegal acts of torture and airstrikes.

Consequently, over time, the US has taken active steps to undermine the Court’s effectiveness and legitimacy. For example, the US has concluded over ninety bilateral agreements with other states agreeing not to transfer to the Court US persons who might have committed crimes under the Court’s jurisdiction without the US’s consent.[ii] This significantly diminishes the Court’s effective functioning in the fight against impunity.[iii] In 2018, John Bolton, when he was the US’s national security advisor, stated: “[w]e won’t cooperate with the ICC. We will provide no assistance to the ICC. We will let the ICC die on its own.” Likewise, Trump, in addressing the UN, stated: “the ICC has no jurisdiction, no legitimacy, and no authority. We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.” Last year, as soon as the prosecutor merely signalled her intention to investigate Afghanistan, the US revoked her visa to prevent her entering the country. The US warned they were “prepared to take additional steps, including economic sanctions if the ICC does not change it course.” This is exactly what they have done. In response to the Court’s decision to commence the investigation into Afghanistan, Trump authorized the “blocking [of] the financial assets of certain ICC staff and [the imposition of] visa restrictions on them and their immediate family members.” Measures of this sort, designed to deter the Court from pursuing its investigation into Afghanistan, are tools normally reserved for perpetrators of international crimes and human rights violations, not individuals working for an institution seeking to hold them accountable. These sanctions are unsurprising when considered in the light of the US’s historic stance towards the ICC. However, conversely, what is surprising is the reaction by the other state parties to the Rome Statute.

A humanising moment amidst widespread inhumanity: a watershed moment for the Court?

The sanctions against the Court fly firmly in the face of justice, but rather than leaving the ‘naming and shaming’ to the likes of NGOs, the President of the Assembly of State Parties to the Rome Statute, O-Gon Kwon, called upon the state parties to the ICC to share their condemnation and reaffirm collective support for the Court. This resulted in 67 state parties to the ICC signing a collective statement which “reconfirms [their] unwavering support for the Court as an independent and impartial judicial institution.” The statement mentions states are committed to “uphold and defend the principles and values enshrined in the Rome Statute and to preserve its integrity undeterred by any measures or threats against the Court.” They “will therefore continue to respect [their] cooperation obligations under the Rome Statute… and call on all States to ensure full cooperation with the Court for it to carry out its important mandate of ensuring justice for the victims of the most serious crimes of international concern.” This is a refreshing development to witness; amidst the widespread inhumanity that has permeated the conflict in Afghanistan, states have firmly denounced the sanctions taken by the US and reaffirmed their commitment to ending impunity and supporting the Court, a humanising moment. Although, whether this has the potential to constitute a watershed moment for the Court is a difficult question to answer.

Going forward, will states be more supportive of the Court? Will they continue to actively denounce actions intended to undermine the Court’s legitimacy and effectiveness? Will states actually comply with their obligations under the Rome Statute, such as extraditing indicted individuals to the Court? (Rome Statute, article 89). Will they actively encourage cooperation with the Court? Are states finally going to follow through with their commitment to help “guarantee lasting respect for and the enforcement of international justice”? (Rome Statute, preamble). The collective statement does signal an intention to do so, but a degree of prudence needs to be exercised in not getting too ahead of ourselves.

There are important countervailing factors to consider when speculating. Firstly, there exists a paradox whereby the values underpinning international criminal justice are ones which the international community claim to agree and endorse, yet simultaneously fail to provide the coercive powers and will to implement.[iv] For instance, the Court issued its first arrest warrant for al-Bashir, former president of Sudan, in 2009 for charges ranging from crimes against humanity to genocide, but this was ignored by various states in Africa, allowing him to travel freely around the African Union for years,[v] until his capture by Sudan’s military in 2019. Indeed, states agree with the ICC in principle, but in practice are not disposed to offer the help and cooperation the Court needs to successfully achieve its goals.[vi] Secondly, and compounding this, only 3 out of the 13 states where an ICC investigation is currently ongoing have endorsed the statement. Similarly, only 67 out of the 123 state parties to the Rome Statute have endorsed it. Therefore, is this collective statement just mere rhetoric, not widely enough endorsed to be meaningful, or does it signal times of changing attitudes vis-à-vis the ICC? Whilst we cannot conclusively answer that question now, one can hope this is a watershed moment for the Court. Its implications would be important for several reasons; active state support would furnish the Court with some much-needed legitimacy, and improve the Court’s effectiveness, in turn, also furthering its legitimacy.

One can only hope

Many scholars believe the ICC to be “living on borrowed time;” a mere temporary and failed experiment which is in a constant battle to demonstrate its merit.[vii] In large part, this is because the Court has suffered extensive criticism; they range from accusations that the Court has secured inadequate convictions, is too slow in delivering justice, has failed to adequately deter criminals, and is biased towards African states. Without going into their merits here, they have damaged the Court’s legitimacy to the point of crisis; the Court is rarely perceived in a positive light.[viii] If this is a time of changing state attitudes towards the ICC, this would likely have the effect of vesting the Court with some much-needed legitimacy; if the Court’s objectives and operations are more readily endorsed and supported, it might be viewed with less scepticism and lament. Similarly, and inextricably linked to the following point, a watershed moment would increase the Court’s effectiveness, in turn likely bolstering its legitimacy.

The ICC has no enforcement mechanism of its own; there is no readily available world police force to give effect to its arrest warrants and apprehend indicted subjects. The reality is that apprehension is states’ responsibility. As such, the Court’s effective functioning is dependent on state cooperation and support. This was aptly demonstrated in the al-Bashir case whereby the African Union’s reluctance to arrest him allowed travel around the African Union uninhibited. Even with his capture, he still has not been surrendered to the Court, illustrating the ICC is at the mercy of states; without cooperation there can be no convictions. The Court originally ruled against opening an investigation into Afghanistan due to fears that Afghanistan authorities, the Taliban and the US would not cooperate. In the absence of state support, the ICC will likely remain to be perceived as a weak, ineffective, and illegitimate institution. This is precisely why changing attitudes towards the Court is so important. If states follow through with their promises made in the statement, this will furnish the Court with some much-needed legitimacy, and help eradicate some of the criticisms mentioned above, for instance, helping the Court secure more convictions, further bolstering its legitimacy. Nevertheless, a note of caution is required in taking this development as a given. Rhetoric without results is still the order of the day internationally, but this does not mean we cannot hope for such an occurrence. The ICC provides victims all over the world with hope – “hope that no one is above the law and that their despair can be salved with justice- that somebody will listen to their tales of horror- that they are not alone.”[ix] The least we can do is hope – hope that this is a watershed moment for the Court, and that states will continue to support the permanent international institution designed to end impunity for egregious crimes and provide justice to victims.

Ethan Gren graduated from Newcastle Law School in 2020 from the LLB (International Legal Studies) and has an avid interest in researching contemporary problems facing both international human rights law and international criminal law. 


[i] Dominic McGoldrick, The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing 2004) 339

[ii] Sean D Murphy, ‘U.S. Bilateral Agreements Relating to the ICC’ (2003) 97(1) The American Journal

of International Law 200, 201

[iii] Human Rights News, ‘United States Efforts to Undermine the International Criminal Court: Legal

Analysis of Impunity Agreements’ (Human Rights Watch) Available at: https://www.hrw.org/legacy/campaigns/icc/docs/art98analysis.htm

[iv] Marina Aksenova, ‘International Criminal Courts and Tribunals’ (2017) 30 LJIL 475, 477

[v] Dawn L Rothe, James Meernik and Pordis Ingadottir, The Realities of International Criminal Justice (Brill 2013) 154

[vi] Leila Nadya Sadat and S Richard Cohen, ‘The New International Criminal Court: An Uneasy Revolution’ (2000) 88(3) Geo LJ 381, 444

[vii] Frederic Megret, ‘The Anxieties of International Criminal Justice’ (2016) 29(1) LJIL 197, 199

[viii] Marieke De Hoon, ‘The Future of the International Criminal Court. On Critique, Legalism and Strengthening the ICC’s Legitimacy’ (2017) 17(4) Int CLR 591, 593

[ix] Leila Nadya Sadat, ‘A Rawlsian Approach to International Criminal Justice and the International Criminal Court’ (2010) 19(1) Tulane Journal of International and Comparative Law 1, 25-26

Confiscation of performers’ royalties in criminal cases, specifically sexual offences

DAMIAN BEASLEY-SUFFOLK

While the heinous crimes of former glam rock star Gary Glitter are forever etched into the public consciousness, the proposal for well-known musicians convicted of sex offences to have their royalties earned from the use of their creative works confiscated (in addition to their statutory punishments) is difficult to justify from a legal perspective. In such notorious cases, there is a need to: (i) maintain the rule of law, (ii) resist “angry mob” cries for retribution, (iii) prevent judgments and punishments which Jeremy Bentham called “private opinion in disguise” or “the mere opinion of men self-constituted into legislature” when railing against the common law in general,[i] and (iv) maintain predictability and uniformity of the application of law. This post will set out the essential nature of the Intellectual Property (IP) rights associated with creative artistic works, followed by a short discussion of the punishment regime for sexual offences in England and Wales to conclude that the proposal to confiscate royalties is not justifiable on legal grounds.

Music and the introduction of personal IP rights

IP rights are a means for individuals to make a living from their work. While artisans and craftspeople can make a living by selling their specialised products or manual skills (which are not easily copied), those whose living is made by using their skills to produce ideas or creative works such as music and literature which others find value in (such as authors and songwriters) suffer in that their work is often easily copied. Copyright – the right of an author to prohibit another from profiting from their work – is a means for enabling the author to make a living from their original work.

A very early reference to personal IP rights comes from Ancient Greece. A law stated that if a cook came up with a recipe for his restaurant, nobody else was permitted to prepare that dish for a year, allowing the cook to make an income from his skill and creativity.

Early composers, on the other hand, had to make private petitions to their monarch for protection of their work. Lully in France enjoyed the Privilège du Roi, an exclusive authorisation to print a work, granted by an authority (namely, the King). Both Lully and, years later, his great admirer Handel in England received Letters Patent, which provided both with exclusive licenses to sell and profit from their music. Handel was an impresario – his oratorios, although mainly on biblical themes, were often first presented in theatres.[ii]  Putting on performances and selling copies of the sheet music was his living, and had the advantage (as with Lully and other composers) of not having to rely on patrons. More importantly, these exclusive licences allowed composers to prevent others from making copies of their works, selling them, and keeping the proceeds, thereby denying the composers of that income.

In England, this ad hoc private approach was replaced by the Statute of Anne, known as the Copyright Act 1710, “to prevent printing by third parties without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families.” The principle is that artists may profit from their creative labour just as any other worker, if people find value or enjoyment in it.

Modern creative rights evolved from this principle, and are found in the Copyright, Designs and Patents Act 1988.  Broadly speaking, as there are some variations, this gives composers of musical works a copyright duration from the creation of the work extending to 70 years after the end of the year of their death (s.12), and performers a copyright over their recorded performance of 50 years from release of the recording (s.13). This takes into account the fact that creative people rarely have any regular salary. Being property rights, their benefit may be passed on to inheritors after the death of the owner, or disposed of according to their will.

Why the call for additional punishments?

Gary Glitter is notorious, but not unique, as a high-profile musician convicted of crimes which are now covered by the Sexual Offences Act 2003 (Ian Watkins, the disgraced former lead singer of Lostprophets, is another example). The Act sets out the punishments to be applied for each offence it includes, usually a term of imprisonment.

Hale et al., discuss the idea of a “Folk Devil”, as “… those figures in society we are encouraged to dislike and avoid, e.g., child sex offenders (also, in history, football hooligans, …). The target can change. The paedophile is the folk devil of our times.” [iii]O’Brien, defining sex crimes and, in particular, those involving children, describes the concept of moral panic as an exaggerated public outcry, based on little or no evidence and thereby missing the main point of such offences mostly being committed by close family members or friends.[iv]  Though this does not diminish the severity of the crime, it may lead to “angry mob”-like reactions which may cause more harm than good. An offender for whom there may be a hope and capability of rehabilitation may, if it appears that all of the rights to their works are to be confiscated along with their potential to earn a livelihood, simply give up, undermining any efforts at re-integrating them into society, and may increase the risk of recidivism. This sounds like a harsh judgment of people who make up “angry mobs”, but serious mistakes have been made.

Parliament sets out specific punishments for specific crimes. There is also a statutory sentencing framework since 1991, and now in the Criminal Justice Act 2003, so judges do not have unfettered discretion in imposing a sentence – i.e. they may not act arbitrarily. Under Article 7 of the Human Rights Act 1998, a heavier penalty than the one which was applicable at the time the criminal offence was committed shall not be imposed. Any punishment beyond this, or one that is not specified by the law is therefore arbitrary, and consequently contrary to the rule of law. The application of criminal law confines itself strictly to the offence(s) concerned, and punishment is prescriptive with relatively limited scope for variation, with the intention that it is appropriate and severe enough for the offence.

This is a specific case in which IP, criminal law and, to an extent, criminology combine in an unusual manner.

In such cases, confiscation of future IP rights from someone convicted of an unrelated offence is impermissible because this is not prescribed in the relevant statute. Further, it is not the case that the royalties which a convicted musician in the present context collects for their existing work are proceeds of crime, which under the Proceeds of Crime Act 2002 could be confiscated.  The 2002 Act refers only to assets acquired as the result of unlawful activity; income and assets lawfully acquired during their everyday occupations are not covered by the act. Similarly, in some US states, so-called “Son of Sam” laws have been enacted which seek to prevent convicted felons from profiting from their crimes by selling their stories or otherwise benefiting from publicity due to their criminal notoriety. These laws have often been struck down as infringing First Amendment rights to freedom of speech under the US Constitution, though an amended statute still exists in New York. However, this goes no further than income directly related to the crime.

Confiscation is therefore unjustifiable through a legal lens as it is arbitrary and contrary to the rule of law, which requires that convictions should only be made for crimes specifically laid down by law, and that only the punishments provided by that law should be applied, a requirement that is stated clearly in Article 7 of the European Convention on Human Rights. A liberal society committed to the rule of law which aims both to punish and rehabilitate, as far as possible, its worst offenders does not need to shy away from harsh punishments, nor compromise its principles, but must nevertheless act fairly and resist arbitrary retribution.


[i] Quoted in R Wacks, Philosophy of Law, a Very Short Introduction (OUP 2006) 28.

[ii] D Hunter, “Patronizing Handel, inventing audiences: the intersections of class, money, music, and history” (2000) Vol XXVIII/I Early Music 32-49.

[iii] C Hale et al., Criminology (OUP 2005).

[iv] M O’Brien and M Yar, Criminology. The Key Concepts, (Routledge 2008)

Damian Beasley-Suffolk is a PhD student at Newcastle Law School, Newcastle University.