Edinburgh Student Law Review 2016 Volume III | Issue 1 i ii Sponsors iii iv Edinburgh Student Law Review 2016 Honorary President Lord Hope of Craighead Honorary Secretary Dr Andrew Steven Editors-in-Chief Alisdair MacPherson Alasdair Peterson Content Editors Maria Paz Gatica Mihail Vatsov Ilya Kotlyar Amanda Wyper Joseph Liptrap Xiaoou Zheng Lorna McFarlane Chief Copy Editor David Murphy Finance Officers Publication Officers Shannon Russell Katarina Foss-Solbrekk Eilidh MacQuarrie Thomas Lattimer Ffion Williams Naana Ofori Copy Editors Paul Alcorn Elspeth Nuttall Arthur Au Emily O’Sullivan Natalia Bell Patrick O’Sullivan Johnny Callender Aisya Rahman Yomna Elewa Wai Yee Tsang Chloe Irwin Kiah Van der Loos Caitlin Jenkins Susannah Walton Danielle McLean The board wish to give their sincere thanks to the anonymous peer reviewers who have contributed greatly to the production of this issue but who cannot, for obvious reasons, be named. v vi Foreword to the First Volume by Lord Hope of Craighead I offer my warmest congratulations to those whose idea it was to institute the Edinburgh Student Law Review and to everyone who has been responsible for bringing this issue forward to publication. It is the first student-produced law review in Scotland and only the third in the United Kingdom. It is fitting that the Law School at Edinburgh – a city that was in the forefront of publishing political reviews in the age of enlightenment – should lead the way here north of the border. Ground-breaking though its publication may be in this jurisdiction, the Review follows a tradition that has long been established among the leading law schools in the United States. The editorship of student law reviews in that country is much sought after, as is the privilege of having a paper accepted by them for publication. The stronger the competition for these positions, the higher the standard that is exhibited by those who occupy them. It is well known that their editors are singled out by the Justices of the US Supreme Court and the Federal Appeals Courts when they are recruiting their law clerks. The reflected glory that this produces enhances in its turn the reputation of the reviews. A reference to editorship of this Review will not escape notice if it appears on the CV of someone who is applying to be a judicial assistant to the UK Supreme Court. But participation in its publication will be of benefit in so many other ways too. This is pre-eminently a publication by and for students. Its aim is to enhance standards of thinking and writing about law and to promote discussion among all those who are studying law, at whatever level this may be. Law is pre-eminent among the professional disciplines in its use of words to convey ideas. Thinking and writing about law is an essential part of legal training. So too is the communication of ideas about law, as each generation has its part to play in the way our law should develop for the future. I wish all success to those who will contribute to this project, whether as writers or as editors, and I look forward to the benefits that will flow from making their contributions available through this publication to the wider legal community. David Hope March 2009 vii viii Editorial It is our pleasure to present this year’s issue of the Edinburgh Student Law Review (ESLR). As we commence the third volume of the ESLR, it is an opportune moment to both reflect and look forward. The ESLR has grown noticeably since its first issue in 2009 and is now a well- established institution at the University of Edinburgh Law School. Each year, copies of the journal are distributed to university libraries across Scotland, to the British Library and to the Scottish Law Commission. Electronic copies are available to the world from our website and the academic database HeinOnline. Students at other universities in Scotland have also followed the ESLR’s lead and established their own student law journals. Every issue of the ESLR has featured a diverse range of legal topics and a broad cross-section of the student community. This issue is no exception. We have articles written by undergraduates, from our university and elsewhere, examining aspects of Roman law, criminal law, human rights and tax law. Also featured are contributions by postgraduate students on Scots property law, international nuclear safety and European Union law. And following on from last year’s special conference edition, a dedicated section of this issue contains articles which emerged from papers delivered by PhD students, from across the UK and Europe, at the Edinburgh Postgraduate Law Conference 2016. We congratulate the organising committee on another successful and productive conference. Finally, we are honoured to begin our issue with a short guest article from Professor Reinhard Zimmermann, Director of the Max Planck Institute for Comparative and International Private Law in Hamburg. We are grateful to Professor Zimmermann for a succinct, thought- provoking contribution which examines one of the big issues of our times. Above all, the ESLR remains a student-managed and student-written publication. It relies upon the assorted talents of an ever-changing body of students. We must therefore thank our fellow board members and our copy editors for their assistance and dedication over recent months. This issue, like its predecessors, reflects the combined efforts of many hours of hard work by a large number of students – editors, officers, anonymous peer reviewers and authors. But it is not only students we must thank. We are grateful to Lord Hope, our Honorary President, and Dr Andrew Steven, our Honorary Secretary, for their encouragement and support. Much credit is also due to those who have generously sponsored this edition: Turcan Connell, Thomson Reuters, BARBRI International, DLA Piper and Freshfields. We appreciate all of the support we have received from the legal profession until now and hope that such fruitful partnerships will continue long into the future. The ESLR continues to evolve as it takes root in the landscape of Scottish legal publications. We believe it serves pedagogical and professional purposes that traditional academic journals for law cannot. Gradually, the merits of student law journals are becoming more widely appreciated in this country. We trust that the ESLR will remain at the forefront of this process. Alisdair MacPherson & Alasdair Peterson June 2016 ix x Table of Contents Reinhard Zimmermann Exodus 1 David Blair See no evil, hear no evil, speak no 3 evil: good faith and the transfer of corporeal property in Scots law Jann-Michael Greenburg The wealth of republics: 21 identifying Roman economic thought using a New Institutional Economics approach Yomna Elewa Sexual “lies” and sexual “frauds”: 27 the case for criminalisation Craig Watson Fundamental freedoms versus 41 fundamental rights – the folly of the EU’s denial over its economic core Angus McEwing On the need for a theory of 54 human rights Magdalena Olesiewicz Nuclear safety after Fukushima: 67 the effectiveness of the Convention on Nuclear Safety for preventing accidents at power stations and mitigating the radiological consequences of such accidents Rachel Green IR35: a sticking plaster for the 75 gaping wound? xi xii Edinburgh Postgraduate Law Conference 2016 Emilie Ghio Coping with business failure and 85 bankruptcy in the European Union Xuechan Ma The intertemporal principle in 102 international judicial practice and its implications for the South China Sea dispute Yin-Cheng Hsu Developments in international 116 cultural law: what hampers the Convention on the Protection of the Underwater Cultural Heritage? Anthony O’Dwyer The artists’ resale right: “the 129 greatest good”? xiii xiv EXODUS Reinhard Zimmermann, Hamburg ‘Was Heimat hieß, nun heißt es Hölle, der man zur rechten Zeit entkam’ (What once was home is now called hell, from which one got away in time). These verses were written by the Jewish essayist and playwright Berthold Viertel in 1941 as part of a poem entitled ‘Gekritzel auf der Rückseite eines Reisepasses’ (Scrawling on the back of a passport). By that time, more than half of its Jewish or supposedly Jewish population had fled Germany. Many of these more than 270,000 persons had ventured, on hazardous routes, into far-away countries in view of the fact that most of the more closely situated ones had either been subjected to national-socialist rule or had closed their borders. Finally, only Shanghai remained available as a place of refuge: ‘[the] one place in the world … where no visa was required at all – and where no one wanted to go’ (W Michael Blumenthal, The Invisible Wall). Today, the reverse is true. Countries such as Syria, Eritrea, and Afghanistan have been turned into hell for those who happen to live there, while Germany, by comparison, appears like a paradise. The result is an enormous influx of immigrants. In 2015 alone, more than 1.1 million persons came to Germany, and even in January 2016 (i.e. in the middle of winter) 3,000 persons per day, on average, crossed the Bavarian border. German society, therefore, has changed and will continue to change. Will we be able to face up to the challenges associated with such change? It may be helpful, in this context, to recall that waves of large-scale emigration, prompted by economic distress or persecution, have, again and again, shaped our Western civilization. After the revocation of the Edict of Nantes, more than 200,000 Huguenots fled from France to Hesse and Prussia, to Switzerland and other protestant countries, including South Africa. In the 18th century, hundreds of thousands, often because they lacked freedom of conscience and religion in their home territory, went in large treks to the East and South-East of Europe.