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Law Research Paper Series

Explore a range of innovative legal research from our academics and students, spanning human rights, corporate governance, criminal justice, information law and more.

2024

• International Surrogacy and Stateless Children: Article 7 UNCRC and the Harmful Effects of Statelessness (Dr Marianna Iliadou, Feb 2024)

  Abstract

  This article examines statelessness resulting from international surrogacy arrangements by exploring whether there is protection afforded under international law and the overall consequences of statelessness for surrogate-born children. The aim of this contribution is to shed light on the statelessness problem in view of recent developments in the field. In particular, for an updated and holistic approach to surrogacy and statelessness, this contribution advocates for the United Nations Convention on the Rights of the Child 1989 (UNCRC) to be read in conjunction with the recently established Verona Principles. These Principles are specifically designed for international surrogacy, able to complement the existing UN protection, and it is argued that a combined reading of the UNCRC and the Verona Principles provides stronger protection of children’s rights. In addition, this contribution aspires to bridge the gap between legal and other consequences of statelessness, with the latter often overlooked in the context of surrogate-born children.

  To explore the above, this article first addresses the phenomenon of statelessness for children born through international surrogacy via an examination of conflicting laws and international surrogacy cases. The article then discusses how this state of affairs infringes the rights of the surrogate-born children, and in particular the right to acquire a nationality (Article 7 UNCRC). It is also submitted that, for surrogacy, Article 7 UNCRC should be read in conjunction with the recently established Verona Principles for a more holistic protection. Finally, this article examines the harmful effects that result from the surrogate-born children’s statelessness, advocating for a more comprehensive approach that goes beyond the strictly legal consequences of statelessness.

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2023

• Privatising Social Security (Professor Amir Paz-Fuchs, Dec 2023)

  Abstract

  This article engages with the conceptual, normative and institutional facets of privatisation of social security. Doing so demands an acknowledgment of the historical starting points and trajectories of social security institutions and dynamics, which relied on private individuals and institutions well before the state nationalised significant segments of the provision. The resurgence of private agents into the welfare mix cannot be seen, however, as simply a reversion to past practices, let alone solely as an administrative or bureaucratic shift. First and foremost, we show that privatisation of social security includes a change in the understanding of role of the state, and the allocation of responsibility across the social-individual continuum. Second, the push towards further privatisation rests on the introduction of market rationales into the design and operation of social security systems.

  The article begins with a conceptual analysis of privatisation of social security, and the recognition that even the definition (‘what is privatisation’) is an ideologically charged activity. In the second section, we describe the rationale and driving forces behind the privatization of social security. In the third section we examine and critically discuss core issues relating to the market-oriented nature of the principles governing current social security regimes (such as competition, performance, consumer choice, workers’ rights, and accountability). This is done through illustrative examples of privatisation, primarily in the fields of welfare to work programmes and pensions. The paper concludes by examining the implications of privatisation on social security and explores the possibility of regulatory measures serving as a cure to (some of) the ills.

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• Better Late Than Never? SOGI Asylum Claims and 'Late Disclosure' Through a Foucauldian Lens (Professor Nuno Ferreira, Dec 2023)

  Abstract

  Members of sexual orientation and gender identity (SOGI) minorities escaping persecution may apply for asylum or bring up their SOGI in asylum procedures later than expected by authorities for a variety of reasons, including fear, shame, and ignorance. Using a Foucauldian lens—in particular the notions of power and confession—this Article assesses how such instances of so-called late disclosure are regulated and treated by statutes, policy guidance, and case law, with a focus on the European context. The Article also considers in detail claimants’ experiences with late disclosures, and the views of both claimants and several other actors in the asylum system on this matter.

  The analysis concentrates on an extensive body of secondary data (including international, European, and domestic case law, policy documents, NGO reports, case files, etc.) as well as of primary data collected in Germany, Italy, and the United Kingdom (UK) at European Union (EU) and Council of Europe levels. The primary data was collected through semi-structured interviews and online surveys with a range of stakeholders, focus groups with SOGI asylum claimants and refugees, observations of asylum appeals, and Freedom of Information requests. The Article thus offers an empirically and theoretically informed critique of late disclosures in SOGI asylum claims in Europe and puts forward recommendations to ameliorate the fear and injustice experienced by SOGI refugees while navigating an asylum system that is stacked against them in so many respects.

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• The Balance of Efficiency and Fundamental Rights in the EU e-Evidence Regulation (Jessica Shurson, Oct 2023)

  Abstract

  The recently enacted EU e-Evidence Regulation improves efficient access to electronic evidence by allowing authorities in one Member State to send orders for electronic evidence directly to service providers in another Member State. Because the law is based on mutual trust, there are minimum fundamental rights safeguards in the law. This article argues that these safeguards are properly balanced with efficiency so long as there is mutual trust in the rule of law in all Member States. However, where there are concerns over illiberalism in some Member States, further fundamental rights protections are needed.

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• A Scanner Darkly: Copyright Liability and Exceptions in Artificial Intelligence Inputs and Outputs (Dr Andres Guadamuz, Feb 2023)

  Abstract

  This article delves into the complex legal issues surrounding the use of copyrighted works in training artificial intelligence (AI). It examines two critical questions: firstly, whether accessing and analysing copyrighted works for AI training constitutes copyright infringement, and secondly, whether outputs generated by AI from these inputs infringe on copyright. The primary focus is on the United Kingdom's jurisdiction, with comparative analyses from EU law and a few U.S. cases. The article aims to bring clarity to these multifaceted legal issues by thoroughly exploring the technicalities of machine learning and its implications for ongoing and future litigation. The hypothesis suggests that most inputs may fall under existing exceptions and limitations, but the outputs' legality may depend on individual case specifics.

  The conclusion reflects on the inevitable legal challenges that accompany technological advancements, similar to past instances like file sharing and the early World Wide Web. The article highlights the current stage of AI technology and law, suggesting that legal precedents or legislative actions might eventually settle disputes. It also emphasises the importance of finding technological solutions, like metadata standards or proactive initiatives, to balance copyright holders' rights with AI innovation. The article concludes by acknowledging the irreversible emergence of AI in our lives and the legal system's need to adapt, offering equitable solutions to copyright holders while fostering technological advancement.

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