York Law School — University of York ________________________ THE YORK LAW REVIEW ________________________ VOLUME II SPRING 2021 EDITORIAL BOARD VOLUME II Editor-in-Chief Carl Makin Deputy Editor-in-Chief Sam Guy Senior Editors Alice Trotter Jessica Gracie Junior Editors Megan Hurcombe Samuel Kuo Editorial Board Members Professor Caroline Hunter Dr Sue Westwood Dr Jed Meers Martin Philip Copyright © the authors, 2021. Permission granted to reproduce for personal and educational use only. Commercial copying, hiring, and lending is prohibited. FOREWORD by Professor Caroline Hunter Head of York Law School It gives me great pleasure to provide this Foreword to the second volume of the York Law Review. I do so in a time of uncertainty and change. Uncertainty because of COVID pandemic. is has clearly meant different ways of working and learning in the last 18 months. I want to congratulate the student editors in publishing this volume in such difficult circumstances. e team has been expanded this year , and no doubt that has helped, but it brings its own challenges as meetings are moved on-line and quick chats have to the scheduled. Beyond the editorial team, COVID has brought changes to University teaching and learning. For much of 2020–21 the Law School's teaching has been entirely on-line. One of the defining elements of York Law School is the use of problem-based learning (PBL) for all of our undergraduate core modules — the question posed by COVID was whether we could translate that form of learning into the virtual classroom. It is lovely to read Fraser King's article — ‘It's Not All Zoom and Gloom: Reflections of University Study during COVID-19’ — reflecting on his experience as both an LLM student and a graduate teaching assistant. e pandemic has brought huge legal changes both in the UK and across the world. In line with the Law School's research focus on socially engaged research, members of staff at the School has been involved in different projects probing COVID and the effects of the law for the public, particularly the vulnerable in our society. at will be published in the next few months. is volume came too early for our stu dents to write in their dissertations about the legal changes that COVID has brought. However, I look forward to dissertations on the topic this year and in future years and I hope some will find their way into the Review in future volumes. I am sure some will come from our LLM students, particularly from our students based in the Centre for Applied Human Rights (CAHR) taking the LLM in International Human Rights Law and Practice. I am very pleased that this volume includes more from our LLM students than the first. e timing for our taught post -graduate dissertation did not allow for any to be included in that volume. is second volume has enabled a number of these to be showcased, including the empirical projects undertaken by students at CAHR. Another change this year is more personal. is is the last Foreword I will write as Head of School as my term of office ends in September. I know that the School is in great hands with my successor Professor TT Arvind. Over the eight years of my term of office the School has grown hugely. In 2013 we had 376 LLB and 16 LLM students, this undergraduate number has now more than doubled to 724 and the LLM numbers are five times bigger at 70 students. Growth is challenging but it allows the School to invest in student projects like the Review. It also challenges us to consider how our values can be maintained. In the first Foreword to the Review I commented that: e starting principle in our culture is that YLS is a learning community in which staff and students are active participants. e Review is new venture that reflects this culture: it is a collaboration between students and staff and shows the active learning of our students particularly the research that goes into a dissertation. is volume continues to demonstrate that core value of the Law School. I have every reason to believe that like the School, the Review will continue to grow and flourish in the hands of our students. Caroline Hunter June 2021 TABLE OF CONTENTS YORK LAW REVIEW VOLUME II EDITORIAL: PUBLISHING IN THE ‘NEW 1 NORMAL’ Carl Makin and Sam Guy UNDERSTANDING JONESTOWN: THE 6 CRIMINAL LIABILITIES OF THE PORT KAITUMA AIRSTRIP SHOOTING AND JONESTOWN MASSACRE Charlie Tye LESSONS UNLEARNED: BLOODY SUNDAY AND 42 THE CONDUCT OF BRITISH ARMED FORCES IN CONFLICT Amy Maria Butler LEGITIMISING BIOPIRACY? FAIRNESS AND 75 EFFICACY OF THE NAGOYA PROTOCOL Dominic Querée Hodnett THE TRUTH WITHIN OUR ROOTS: EXPLORING 107 HAIR DISCRIMINATION AND PROFESSIONAL GROOMING POLICIES IN THE CONTEXT OF EQUALITY LAW Stephanie Cohen BLOWING THE WHISTLE ON THE IRAQ WAR: 123 CONSCIENTIOUS MORAL OBJECTION AND THE DUTY TO OBEY THE LAW Laura Burke DWORKIN'S GIFT TO CONSTITUTIONAL 153 JURISPRUDENCE: JUSTIFYING THE MORAL READING OF THE US CONSTITUTION Max Williams A GAME OF THRONES: THE BATTLE FOR THE 191 SUPREMACY OF EU LAW FOLLOWING WEISS II Jakub Kozlowski IT'S NOT ALL ZOOM AND GLOOM: 204 REFLECTIONS ON UNIVERSITY STUDY DURING COVID–19 Fraser King "THEY WERE SUPPOSED TO PROTECT US": 215 ANALYSING PATRIARCHY AND THE WORK OF HUMAN RIGHTS DEFENDERS IN NIGERIA Nabila Okino MECHANISMS USED TO TRANSLATE THE 250 INTERNATIONAL PROHIBITION ON CHILD RECRUITMENT TO ARMED NON-STATE ACTORS IN THE DEMOCRATIC REPUBLIC OF CONGO Ella Allen EDITORIAL: PUBLISHING IN THE ‘NEW NORMAL’ Carl Makin and Sam Guy For everyone, the past year has been incredibly challenging. e COVID-19 pandemic has had wide-ranging effects and has exacerbated existing societal injustices and inequalities. It has also brought with it radical implications for the workplace, many of which will surely be grappled with and developed long after the pandemic has passed. Invariably, this context has brought with it many difficulties for the operation of the York Law Review, particularly given that, having been established in 2019, it is so nascent in form. Despite – and, indeed, especially in light of – these unique challenges, it gives us great pleasure to introduce the second volume of the Review. is volume shows the development of the journal, as we move from our inaugural volume to this second and indeed more mature collection of papers. e volume goes further to showcase the variety of scholarship undertaken and taught at the York Law School. It exhibits how the School is not only pedagogically innovative, but that its methodologically diverse staff pass on their skills and expertise to students in a way which sponsors and encourages an equally diverse level of scholarship within the student body. is volume can be neatly divided into two halves. e first seven pieces are doctrinal and theoretical in nature. ey examine and analyse a wide variety of legal fields – from criminal culpability in cult environments to international protocols on the patenting of traditional knowledge relating to plants where this can be used for medicinal or other commercial purposes. In interrogating this wide field of subjects, the papers presented in this volume go beyond simply ordering our understanding of law and legal provisions. Instead, they often 2 York Law Review problematise and challenge the extant provisions. Some, such as Amy Butler’s piece on the Overseas Operations Act, do so through historicism and deploy historical happenings as a challenge to current thinking. Comparably, Stephanie Cohen’s piece on hair discrimination deploys both an element of historicism and a racial lens to argue that notions of ‘ideal hair’ are perpetuated in the professional world through institutional policies and are inadequately dealt with in equalities legislation. e latter paper was the chosen submission from our postgraduate essay competition, which asked students from across the York Law School’s postgraduate taught programmes to discuss a recent development in the law. In the parallel competition for undergraduate students, Jakub Kozlowski’ s paper was selected. is piece examines the contentious decision in Weiss II , where Germany’s national Federal Constitutional Court declared a preliminary ruling of the Court of Justice of the European Union invalid. Jakub situates the judgment within a growing trend whereby Member States have felt increasingly empowered to disregard EU law when it conflicts with national agendas, in contravention of the long-established concept of the supremacy of EU law, and suggests that this may set a dangerous precedent in light of States such as Poland and Hungary facing internal rule of law crises. Both Stephanie’s and Jakub’s respective papers exemplify the vision for the competitions process, showcasing the capacity of the Law School’s student body to engage with the multifaceted role of law in pressing social issues. Some of our papers, such as Laura Burke’s piece on conscientious moral objection and the Iraq war, draw on theoretical and philosophical arguments to deal with contemporary issues – in this case, the question of whether Katharine Gun, the former Government Communications Headquarters (GCHQ) linguist, could be prosecuted under the Official Secrets Ac t 1989. e popular importance of these issues is evident in the fact that the saga was turned into a film, Official Secrets (2019) starring Keira Knightley. Laura’s work here tackles the tension between legal obedience and moral obligation. In a similar vein, Max Williams’ piece provides an engaging examination of Dworkin's moral reading of Volume — Spring 2021 3 the United States Constitution. rough a thorough treatment of three scholars’ criticism of Dworkin’s work, Max convincingly argues that Dworkin’s approach maintains fidelity to the Constitution’s text whilst also protecting minority rights and democratic interests.