International Court of Justice orders Japan to suspend its Antarctic whaling program

japan-whaling-e1270007253119The International Court of Justice has today upheld Australia’s bid to ban Japan’s Antarctic whaling program.

ICJ president Peter Tomka said the court concluded the scientific permits granted by Japan for its whaling program were not scientific research as defined under International Whaling Commission rules.  The Court had found, by a majority of twelve votes, that Japan had conducted a program for logistical and political considerations, rather than scientific research. There is of course no appeal against an ICJ ruling and Japan has officially said that it will comply with the ruling.

The following is based on the ICJ’s press release.

Findings of the Court

First, the Court dismissed Japan’s argument that the Court had no jurisdiction over the dispute, submitted by Australia. Continue reading

Gestational parents, non-genetic mothers, siblings with different mothers: family law in a quandary

Orig.src_.Susanne.Posel_.Daily_.News-dna_baby_wombG (Children), Re [2014] EWCA Civ 336 (25 March 2014) – read judgment

This interesting family dispute demonstrates the tension between legal parenthood and biological parenthood in times when both legislation and common law are struggling to keep up with the possibilities offered by reproductive medicine; where a child can be born with no biological relationship with its gestational parent, or, conversely, where children can be borne of two separate mothers and yet be full genetic siblings.

Background

The appellant and respondent had been in a lesbian relationship for some years.  Following unsuccessful attempts by the respondent to conceive using her own eggs, the appellant agreed to donate eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous donor. The embryos were implanted in the respondent who carried and gave birth to the twins. Continue reading

Backing just one horse in a consultation process can be unfair


Aluminum-Warehouse21United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust  [2014] EWHC 890 (Admin), Phillips J, 27 March 2014  – read 
judgment

Public law principles allow you to challenge a decision of a public authority if the consultation process preceding it was unfair. Unfairness comes in many shapes and sizes, but the commonest one alleged is that it was not carried out at the formative stage. The authority had already made up enough of its mind so the consultation process ceased to mean anything  – it was just going through the motions.

The law is equally clear that an authority does not have to consult on every conceivable option. Indeed it can just consult on its preferred option. 

But this decision shows that if it does so it has to be wary, because on the particular facts that may be unfair.

Enter our cast, challenger in the form of Rusal (proprietor one Oleg Deripaska), and the defendant, the London Metal Exchange.

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John Redwood MP and David Hart QC debate environmental rules

talk_05Is environmental regulation unnecessary and is it crippling our economy? This was the debate which raged last Thursday between a senior Conservative backbencher and one of our regular 1 Crown Office Row contributors to the blog – thanks to the UK Environmental Law Association who organised it and city law firm Simmons & Simmons who hosted lunch. Stephen Tromans QC of 39 Essex Street ably chaired the debate.

The motion of the debate was a broad one which John Redwood narrowed down into an onslaught on climate change subsidies, which he said were pointless and damaging. To find out more about his case, and David’s response, listen to the audio file here.

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Judicial Review Reform: All about the money, money, money?  – Angela Patrick

RCJ restricted accessAs MPs and Peers consider the Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations and the Criminal Justice and Courts Bill, Angela Patrick, Director of Human Rights Policy at JUSTICE considers the Lord Chancellor’s view that proposed judicial review changes do not restrict access to judicial review remedies or restrict the rule of law.

Tomorrow (Thursday), MPs will consider a series of detailed amendments to the Government’s proposed changes to judicial review in the Criminal Justice and Courts Bill.  The proposed changes to legal aid for judicial review are not up for debate. The Regulations, which will restrict legal aid to only those cases granted permission, are already made and due to come into force on 22 April.  There will be no debate on those changes, unless MPs and Peers demand one.

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Supreme Court: Strasbourg’s mixed messages about Article 10 and any right to receive information

Kennedy v. Charity Commission et al, Supreme Court, 26 March 2014 read judgment

In judgments running to 90 pages, the Supreme Court dismissed this appeal by Mr Kennedy, a Times journalist, for access to documents generated by the Charity Commission under the Freedom of Information Act 2000 concerning three inquiries  between 2003 and 2005 into the Mariam Appeal. This appeal was George Galloway’s response to the sanctions imposed on Iraq following the first Gulf War, and little Mariam was a leukaemia sufferer. Mr Kennedy’s suspicion, amongst others, was that charitable funds had been used by Galloway for political campaigning.

The Charity Commission had refused the request on the ground that the information was subject to an absolute exemption from disclosure contained in s.32(2) of the FOIA. The Supreme Court (in common with the Court of Appeal) held that the absolute exemption applied and dismissed Mr Kennedy’s request. But the result was a little closer in the SC, with two judges dissenting, essentially on Article 10 grounds.

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No maternity rights for commissioning mother in surrogacy case

Pregnant_woman_silhouette.pngCD v ST (judgment of the Court) [2014] EUECJ C-167/12 (18 March 2014) – read judgment

 Z v A Government Department and the Board of Management of a Community School C‑363/12 – read judgment

The European Court (CJEU) has now considered two requests for preliminary ruling made in proceedings between intended mothers (also referred to as a commissioning mother) who have had babies through a surrogacy arrangement, and their employers concerning the refusal to grant them paid leave following the birth of the babies. It has replied that EU law does not provide for commissioning mothers to be entitled to paid leave equivalent to maternity leave or adoption leave.

I reported on the AGs’ opinions in both cases here, noting that AG Kokott and AG Wahl took a completely different approach in their interpretation of the applicability of Directive 92/85 in surrogacy cases; the Court has clearly decided that granting maternity leave in these circumstances would be a step too far.

Continue reading