The Limitations of Law in promoting synergy between environment and development policies in developing countries

Journal of Energy and Natural Resources Law, 24(4) pp.574-606 RAE2008

Cross-Border Unitization and Joint Development Agreements: An International Law Perspective

Okoye, Adaeze, et al, 'Cross-Border Unitization and Joint Development Agreements: An International Law Perspective', Houston Journal of International Law (2007) 29(2) pp.355-425 RAE2008

The corporate social responsibility movement and law's empire: Is there a conflict?

At the heart of corporate governance and social responsibility discourse is recognition of the fact that the modern corporation is primarily governed by the profit maximisation imperative coupled with moral and ethical concerns that such a limited imperative drives the actions of large and wealthy corporations which have the ability to act in influential and significant ways, shaping how our social world is experienced. The actions of the corporation and its management will have a wide sphere of impact over all of its stakeholders whether these are employees, shareholders, consumers or the community in which the corporation is located. As globalisation has become central to the way we think it is also clear that ‘community’ has an ever expanding meaning which may include workers and communities living very far away from Corporate HQ. In recent years academic commentators have become increasingly concerned about the emphasis on what can be called short-term profit maximisation and the perception that this extremist interpretation of the profit imperative results in morally and ethically unacceptable outcomes.1 Hence demands for more corporate social responsibility. Following Cadbury’s2 classification of corporate social responsibility into three distinct areas, this paper will argue that once the legally regulated tier is left aside corporate responsibility can become so nebulous as to be relatively meaningless. The argument is not that corporations should not be required to act in socially responsible ways but that unless supported by regulation, which either demands high standards, or at the very least incentivises the attainment of such standards such initiatives are doomed to failure. The paper will illustrate by reference to various chosen cases that law’s discourse has already signposted ways to consider and resolve corporate governance problems in the broader social responsibility context.3 It will also illustrate how corporate responsibility can and must be supported by legal measures. Secondly, this paper will consider the potential conflict between an emphasis on corporate social responsibility and the regulatory approach.4 Finally, this paper will place the current interest in corporate social responsibility within the broader debate on the relationship between law and non-legally enforceable norms and will present some reflections on the norm debate arising from this consideration of the CSR movement.

A study of the extent to which Irish law, policy and practice allow for Ireland's application of the United Nations Convention on the Rights of the Child, 1989 to pre-natal children

The central research question of this thesis asks the extent to which Irish law, policy and practice allow for the application of the United Nations Convention on the Rights of the Child (CRC) to pre-natal children. First, it is demonstrated that pre-natal children can fall within the definition of ‘child’ under the Convention and so the possibility of applying the Convention to children before birth is opened. Many State Parties to the CRC have interpreted it as applicable to pre-natal children, while others have expressed that it only applies from birth. Ireland has not clarified whether or not it interprets it as being applicable from conception, birth, or some other point. The remainder of the thesis examines the extent to which Ireland interprets the CRC as applicable to the pre-natal child. First, the question of whether Ireland affords to the pre-natal child the right to life under Article 6(1) of the Convention is analysed. Given the importance of the indivisibility of rights under the Convention, the extent to which Ireland applies other CRC rights to pre-natal children is examined. The rights analysed are the right to protection from harm, the right to the provision of health care and the procedural right to representation. It is concluded that Ireland’s laws, policies and practices require urgent clarification on the issue of the extent to which rights such as protection, health care and representation apply to children before birth. In general, there are mixed and ad hoc approaches to these issues in Ireland and there exists a great deal of confusion amongst those working on the frontline with such children, such as health care professionals and social workers. The thesis calls for significant reform in this area in terms of law and policy, which will inform practice.

Regulating the Ocean: Piracy and Protection along the East African Coast

From 2008-2012, a dramatic upsurge in incidents of maritime piracy in the Western Indian Ocean led to renewed global attention to this region: including the deployment of multi national naval patrols, attempts to prosecute suspected pirates, and the development of financial interdiction systems to track and stop the flow of piracy ransoms. Largely seen as the maritime ripple effect of anarchy on land, piracy has been slotted into narratives of state failure and problems of governance and criminality in this region.

This view fails to account for a number of factors that were crucial in making possible the unprecedented rise of Somali piracy and its contemporary transformation. Instead of an emphasis on failed states and crises of governance, my dissertation approaches maritime piracy within a historical and regional configuration of actors and relationships that precede this round of piracy and will outlive it. The story I tell in this work begins before the contemporary upsurge of piracy and closes with a foretaste of the itineraries beyond piracy that are being crafted along the East African coast.

Beginning in the world of port cities in the long nineteenth century, my dissertation locates piracy and the relationship between trade, plunder, and state formation within worlds of exchange, including European incursions into this oceanic space. Scholars of long distance trade have emphasized the sociality engendered through commerce and the centrality of idioms of trust and kinship in structuring mercantile relationships across oceanic divides. To complement this scholarship, my work brings into view the idiom of protection: as a claim to surety, a form of tax, and a moral claim to authority in trans-regional commerce.

To build this theory of protection, my work combines archival sources with a sustained ethnographic engagement in coastal East Africa, including the pirate ports of Northern Somalia, and focuses on the interaction between land-based pastoral economies and maritime trade. This connection between land and sea calls attention to two distinct visions of the ocean: one built around trade and mobility and the other built on the ocean as a space of extraction and sovereignty. Moving between historical encounters over trade and piracy and the development of a national maritime economy during the height of the Somali state, I link the contemporary upsurge of maritime piracy to the confluence of these two conceptualizations of the ocean and the ideas of capture, exchange, and redistribution embedded within them.

The second section of my dissertation reframes piracy as an economy of protection and a form of labor implicated within other legal and illegal economies in the Indian Ocean. Based on extensive field research, including interviews with self-identified pirates, I emphasize the forms of labor, value, and risk that characterize piracy as an economy of protection. The final section of my dissertation focuses on the diverse international, regional, and local responses to maritime piracy. This section locates the response to piracy within a post-Cold War and post-9/11 global order and longer attempts to regulate and assuage the risks of maritime trade. Through an ethnographic focus on maritime insurance markets, navies, and private security contractors, I analyze the centrality of protection as a calculation of risk and profit in the contemporary economy of counter-piracy.

Through this focus on longer histories of trade, empire, and regulation my dissertation reframes maritime piracy as an economy of protection straddling boundaries of land and sea, legality and illegality, law and economy, and history and anthropology.

Contracting Freedom: Governance and East Indian Indenture in the British Atlantic, 1838-1917

This is a dissertation about identity and governance, and how they are mutually constituted. Between 1838 and 1917, the British brought approximately half a million East Indian laborers to the Atlantic to work on sugar plantations. The dissertation argues that contrary to previous historiographical assumptions, indentured East Indians were an amorphous mass of people drawn from various regions of British India. They were brought together not by their innate "Indian-ness" upon their arrival in the Caribbean, but by the common experience of indenture recruitment, transportation and plantation life. Ideas of innate "Indian-ness" were products of an imperial discourse that emerged from and shaped official approaches to governing East Indians in the Atlantic. Government officials and planters promoted visions of East Indians as "primitive" subjects who engaged in child marriage and wife murder. Officials mobilized ideas about gender to sustain racialized stereotypes of East Indian subjects. East Indian women were thought to be promiscuous, and East Indian men were violent and depraved (especially in response to East Indian women's promiscuity). By pointing to these stereotypes about East Indians, government officials and planters could highlight the promise of indenture as a civilizing mechanism. This dissertation links the study of governance and subject formation to complicate ideas of colonial rule as static. It uncovers how colonial processes evolved to handle the challenges posed by migrant populations.

The primary architects of indenture, Caribbean governments, the British Colonial Office, and planters hoped that East Indian indentured laborers would form a stable and easily-governed labor force. They anticipated that the presence of these laborers would undermine the demands of Afro-Creole workers for higher wages and shorter working hours. Indenture, however, was controversial among British liberals who saw it as potentially hindering the creation of a free labor market, and abolitionists who also feared that indenture was a new form of slavery. Using court records, newspapers, legislative documents, bureaucratic correspondence, memoirs, novels, and travel accounts from archives and libraries in Britain, Guyana, and Trinidad and Tobago, this dissertation explores how indenture was envisioned and constantly re-envisioned in response to its critics. It chronicles how the struggles between the planter class and the colonial state for authority over indentured laborers affected the way that indenture functioned in the British Atlantic. In addition to focusing on indenture's official origins, this dissertation examines the actions of East Indian indentured subjects as they are recorded in the imperial archive to explore how these people experienced indenture.

Indenture contracts were central to the justification of indenture and to the creation of a pliable labor force in the Atlantic. According to English common law, only free parties could enter into contracts. Indenture contracts limited the period of indenture and affirmed that laborers would be remunerated for their labor. While the architects of indenture pointed to contracts as evidence that indenture was not slavery, contracts in reality prevented laborers from participating in the free labor market and kept the wages of indentured laborers low. Further, in late nineteenth-century Britain, contracts were civil matters. In the British Atlantic, indentured laborers who violated the terms of their contracts faced criminal trials and their associated punishments such as imprisonment and hard labor. Officials used indenture contracts to exploit the labor and limit the mobility of indentured laborers in a manner that was reminiscent of slavery but that instead established indentured laborers as subjects with limited rights. The dissertation chronicles how indenture contracts spawned a complex inter-imperial bureaucracy in British India, Britain, and the Caribbean that was responsible for the transportation and governance of East Indian indentured laborers overseas.

Personal and proprietary tenancies

Examines the Chancery Division ruling in London Development Agency v Nidai on whether a number of agreements providing for the construction of a bridge and shop premises on the retaining walls of a river resulted in a binding legal lease or a series of bare licences. Comments on the failure of the judgment to mention the House of Lords ruling in Bruton v London & Quadrant Housing Trust and discusses whether a Bruton tenancy is capable of binding third parties.

Description and search labor for information retrieval

Selection power is taken as the fundamental value for information retrieval systems. Selection power is regarded as produced by selection labor, which itself separates historically into description and search labor. As forms of mental labor, description and search labor participate in the conditions for labor and for mental labor. Concepts and distinctions applicable to physical and mental labor are indicated, introducing the necessity of labor for survival, the idea of technology as a human construction, and the possibility of the transfer of human labor to technology. Distinctions specific to mental labor, particular between semantic and syntactic labor, are introduced. Description labor is exemplified by cataloging, classification, and database description, can be more formally understood as the labor involved in the transformation of objects for description into searchable descriptions, and is also understood to include interpretation. The costs of description labor are discussed. Search labor is conceived as the labor expended in searching systems. For both description and search labor, there has been a progressive reduction in direct human labor, with its syntactic aspects transferred to technology, effectively compelled by the high relative costs of direct human labor compared to machine processes.

The Creative Life of Law: Improvisation, Between Tradition and Suspicion

Originally applying solely to chefs, waiters, dishwashers and the like, New York City (NYC) regulations governing cabaret employees were altered in 1943 to include musicians and entertainers, who until the late 1960’s would be required to hold a NYC Cabaret Employee’s Identification Card. The introduction of these notorious “police cards” occurred roughly contemporaneously to the emergence in after-hours night clubs in Harlem of a new and supposedly “wild”, improvisatory brand of jazz: bebop. This article adds to the many rather practical theories on why these cards were introduced a more abstract discussion coined in terms of the relationship between suspicion and tradition and focusing on differing essences of law and improvisatory jazz. While law breathes tradition and is suspicious of improvisation and unpredictability, the converse is true of jazz. Allusion to tradition in jazz improvisation is often viewed as a betrayal of its creative and spontaneous nature. And yet it is only through its departure from the stable transmission of past meaning that improvisation gains meaning. Law, in contrast, while appearing to be entirely composed of tradition, to transmit some sort of determinate and fixed meaning, is constantly betraying itself. As no two legal actions can be exactly the same, judges must improvise on tradition and past precedent every time they are asked to decide a case. Law can thus neither dispense with nor be completely determined by tradition. The legal decision instead lies on the border between what it “is” and what it otherwise could be and every judicial act is, in some sense, a species of improvisation. This article uses the cabaret cards to explore this uncertain terrain between law and improvisation, between tradition and suspicion.

The problem with law in books and law in computers - the oral nature of law

It is becoming clear that, contrary to earlier expectations, the application of AI techniques to law is not as easy nor as effective as some claimed. Unfortunately, for most AI researchers, there seems to be little understanding of just why this is. In this paper I argue, from empirical study of lawyers in action, just why there is a mismatch between the AI view of law, and law in practice. While this is important and novel, it also - if my arguments are accepted - demonstrates just why AI will never have success in producing the computerised lawyer.