Law - Doctoral Theses

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    Regional cooperation for the establishment and management of transboundary marine protected areas: a reflection on normative shifts in international environmental law
    (University College Cork, 2022) Enright, Sarah Ryan; McIntyre, Owen; O'Hagan, Anne Marie; Havforskningsinstituttet; Irish Marine Institute; Science Foundation Ireland
    The purpose of this thesis is to examine the extent of the legal obligations of States under international law to conserve marine biodiversity via the establishment of transboundary marine protected areas (MPAs) across international jurisdictions. The main argument presented will demonstrate that while the science underpinning conservation of marine biodiversity and ecological connectivity has evolved to recommend transboundary networks of MPAs, the relevant international legal framework has not evolved in parallel to support their designation and implementation, resulting in limited and ad hoc approaches globally, ranging from traditional legally binding multilateral options under the United Nations Regional Seas Programme to non-legally binding voluntary agreements. In particular, this thesis sets out to examine to what extent international environmental law and the law of the sea facilitate and support cooperation between States in creating transboundary MPAs, in particular at the regional level.
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    A critical analysis of sea-fisheries enforcement in Ireland
    (University College Cork, 2020-10-02) O'Keeffe, Laurie; McIntyre, Owen
    Effective regulation goes hand in hand with a normatively effective enforcement regime. In the context of sea-fisheries law, it is crucial that the law is fit for purpose and that it is enforced effectively in order to meet sustainability and conservation objectives under the Common Fisheries Policy. Therefore, it is essential that Ireland is compliant with its enforcement obligations under EU fisheries law. Although regulation and enforcement has been researched extensively worldwide, sea-fisheries law and its enforcement in Ireland has been almost entirely neglected in the literature. Fisheries are a politically contentious issue and yet this intensely regulated area has never been the subject of dedicated academic research in Ireland. To the author’s knowledge, this research is the first comprehensive analysis of the sea-fisheries enforcement regime in Ireland. As the author is employed in the legal division of the national enforcement agency for sea-fisheries, the Sea-Fisheries Protection Authority, the research benefits from unique insights into how enforcement operates in practice, which would not otherwise be accessible. Therefore, the research takes a distinctly practical view of regulation and enforcement of sea-fisheries law in Ireland, with the benefit of a practitioner focus based on professional experience. The thesis undertakes a review of the key pieces of legislation governing sea-fisheries law which is enforced exclusively by criminal prosecution without any alternative sanction options. The effectiveness of this reliance on criminal prosecution is considered with a view to determining whether administrative sanctions could be introduced to supplement or replace the existing enforcement system. This may also have implications for other areas of regulation in Ireland, many of which are also reliant on criminal prosecution to enforce regulatory norms. In particular, the nature of what constitutes a crime is considered in order to inform a discussion of the utility of defining and prosecuting regulatory breaches as criminal offences. Discussion of the difficulties associated with criminal prosecution of regulatory offences is informed by the case law and selected case studies. A range of administrative sanction options are explored to establish whether they could provide an alternative solution to sea-fisheries enforcement. The constitutional hurdles which administrative sanctions in Ireland must overcome are analysed in order to determine the limits and boundaries of any potential administrative sanction regime. The thesis proposes how such a system might operate in practice, in light of various enforcement theories which may assist the regulator in the challenging task of implementing an effective, proportionate and dissuasive enforcement policy which upholds fair procedures and can withstand judicial scrutiny.
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    End-of-life decisions for young children: law, systems and Luhmann
    (University College Cork, 2021-09-29) Somers, Caroline; Donnelly, Mary
    This study interrogates the legal and medical system rationalities that drive child end-of-life decision-making (CELDM) in respect of the very young. Neither conventional rights discourse nor legal doctrine has shown itself capable of resolving or indeed providing a full understanding of the issues involved. This study therefore takes a variegated approach. On the factual level it explores ways in which decisions are reached in circumstances of high epistemic uncertainty amplified by the impact of rapid technological advancement. On the temporal level it analyses how it is possible for desired outcomes (death/life) to change very significantly in a relatively short period of time, in the absence of regulation or considered public debate, and how this may be deemed socially acceptable. On the conceptual level it utilises aspects of Niklas Luhmann’s theory of social systems to develop new research strategies and tools to analyse this complex societal issue. The analysis focuses on events in England and Wales, a jurisdiction with a rich reported history in this area. [**********] Academic discourse on CELDM has narrowed since the 1980s. Now a small number of themes are mined to great depth. There are serious consequences to a flattening of debate, not least the disjunction between experience and expertise. To achieve a more comprehensive understanding, without which we cannot work towards better answers, we need to ask a greater diversity of questions. Space must therefore be claimed within academic discourse for new types of engagement. This study attempts a new understanding of one of the most sensitive, acutely controversial medico-legal issues of our time. This has led, of necessity, to a resort to interdisciplinarity because the tools and methodologies available within legal scholarship are not sufficient. Systems theory, a recognised sub-discipline of sociology, brings new concepts, ontologies, research strategies and objectives. This is challenging but appropriate. Interdisciplinary scholarship requires that we reflect on knowledge while creating it because some social problems are so complex they require this kind of non-automatic engagement. [**********] In relation to law, Luhmann refused to supply a normative analysis of a normative discourse. This would involve prior commitment and unexamined assumptions. Instead he offered a cognitive approach, one that seeks to learn rather than to instruct. In relation to undecidable questions, including CELDM, or so called ‘wicked problems’, we may be persuaded by this. These are situations inhabited by ineradicable uncertainty, in which the correct answer cannot be deduced logically, and the issue remains a source of disagreement among reasonable people. And all the while decisions must be made, and whatever decision is made will bring profound irreversible consequences. In such circumstances the simple aggregation of norms, the imposition of a normative framework on a normative discourse, makes little sense as a starting point for analysis. [**********] This study therefore presents a deliberately cognitive engagement with the normative discourses of law and medicine. It follows a logical path mining the history of CELDM to understand why, in our previous society, it was accepted medical practice to allow children with relatively minor disabilities to go untreated. The thesis begins by providing a rich socio-historical analysis of clinical practice focused on the decades immediately prior to legal intervention in 1981, but taking in the longer view also; the history of institutionalisation in Britain. The ‘stigmata’ cases of 1981, R v Arthur and Re B, and their contemporary discourse, are explored in detail for the legal, medical and public attitudes recorded. 1981 is seen to mark a pivotal moment when the beginnings of change to a new medico-legal order in respect of CELDM are evident. [**********] These emerging dynamics in the medical system are interrogated using the tools of systems theory. They are dynamics to which the legal system would be required, in time, to respond. The discussion therefore turns to the gradual expansion in legal best interests rationality over the past three decades. The law is seen to remain open textured, but in practice to be more predictable and accompanied by more intellectual scaffolding than is sometimes allowed. The thesis ends with a consideration of the role of reform in legal academia, and the critical evaluation of two reform proposals in respect of CELDM. Throughout, Luhmann’s theory provides the framework for analysis. It justifies the selection of methods and configures the limitations of a study that is framed and formulated by a relationship of fidelity to its methodology. [**********] The contribution of this study is the creation of a new model through which to observe and analyse CELDM as a medico-legal issue. It is achieved in ways that are deeply contextualised, historically rich and secured by a robust conceptual underpinning.
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    Maritime security and people at sea: utilising human security as a framework to bridge the gaps in protection
    (University College Cork, 2021-12-27) Abudu, Ramat Tobi; Cubie, Douglas; Zeffert, Henrietta
    It is known that people at sea are vulnerable to harsh weather conditions and maritime security threats. Nowadays, case law highlights how maritime security operations that are meant to be a source of security for these people also constitute a source of vulnerability – as such operations may be undertaken in a manner that violates their rights. This issue emanates from the friction between maritime security operations and human rights law linked to the dissonance between international human rights law (IHRL) and the international law of the sea (LOS). Scholars suggest a systemic integration between these two fields of law, alongside other relevant fields of international law, to protect people at sea. The problem is that the existing research does not contemplate the gaps within the law as a stumbling block to protecting people at sea. By utilising the human security framework to guide the doctrinal analysis of IHRL and LOS vis-à-vis maritime security, this thesis finds that people at sea are still rendered vulnerable by gaps in protection resulting from legal uncertainties (including, but not limited to, maritime ‘legal black holes’). For example, legal uncertainties cause de jure rightlessness affecting the protection of migrants visible in the Mediterranean Sea and de facto non-enforcement affecting the protection of civilians within the Gulf of Guinea. These issues are genuine conflicts within international law that a traditional conflict avoidance technique cannot remedy. This thesis proposes the novel perspective of human security as a framework relevant to maritime security and international law that can strengthen the protection of people at sea. It argues that the tenet of human security allows it to function as a bridge over the maritime legal black holes, as it unifies traditionally set apart laws (IHRL and LOS), policies, governments, organisations, civil society groups, etc. By examining the potential and limits of the human security approach to deal with identified gaps in protection, this thesis concludes that the core benefit of the human security framework to maritime security and international law is that it promotes a coherent people-centric interpretation and application of state-centric concepts, policies, and laws towards the goal of protecting people at sea.
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    Reckless trading: critical analysis and proposals for reform
    (University College Cork, 2021) Breen, Roz; Lynch Fannon, Irene
    A company is an entirely separate person from its owners and controllers. Thus, if the company becomes insolvent, its directors are not responsible for its debts. The risks are instead externalised to the company’s creditors. The purpose is to encourage entrepreneurship and commercial risk-taking. This can, however, lead to reckless trading behaviours by directors to the detriment of creditors. Finding the correct balance between supporting valid commercial risk-taking and entrepreneurship, on the one hand, and encouraging financial responsibility towards creditors on the other is thus a crucial issue in company law. Too much emphasis on the former can result in financial and economic crises. Too much emphasis on the latter can stultify and have a chilling effect on business activity. This is where the concept of reckless trading becomes of vital importance. Measures have been introduced in many jurisdictions. A reckless trading provision exists in Ireland in the form of section 610 Companies Act, 2014. The purpose of these measures is to impose personal liability for creditors losses on directors who, when the company was financially distressed, ran the business in an irresponsible manner, causing otherwise avoidable losses to creditors. This type of legislation, both in Ireland and elsewhere, has been largely unsuccessful. The provisions are infrequently invoked and when they are, the success rate is low. The first central research question of this thesis is to investigate why this is so. These difficulties may arise from an internal source. It will be asserted that section 610 is confusingly and inadequately drafted. Suggested amendments to increase its invocation rate and effectiveness will be put forward. The problems may also derive from external factors. Reckless trading type behaviour may be infrequent. Moreover, high legal costs may deter liquidators and creditors from invoking the section especially as directors of failed companies may be financially constrained themselves. Once it has been determined why the provision is so infrequently invoked, the second central research question will be addressed. Considering the difficulties, perhaps a reckless trading provision is not required at all? The thesis will assert that the other rules and regimes examined due not act as suitable alternatives. Moreover, a reckless trading provision has theoretical support. The final research question asks whether, in addition to legislative amendments, other solutions also exist which could be deployed in tandem with a revised section. The role of public enforcement will be examined. The thesis will assert that a criminalised reckless trading provision would be neither beneficial nor effective. However, the potency of the provision would be considerably improved via civil public enforcement. In particular, it will be argued that the Office of the Director of Corporate Enforcement should have an oversight and invocation role with regard to the provision. Importantly also, the ODCE should be granted the ability to impose a financial sanction in certain circumstances. The thesis thus produces workable solutions to improve the efficacy of the Irish reckless trading provision.