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1
Nwosu, Udoka. "Head of state immunity in international law." Thesis, London School of Economics and Political Science (University of London), 2011. http://etheses.lse.ac.uk/599/.
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International events since the landmark Pinochet case, increased human rights advocacy, efforts at a culture of accountability, as well as the recent pro-democratic up-rising in the Arab states sustain impetus for the consideration of Head of state immunity in international law. A naturalist view of international law is that there can be no Head of state immunity for violations of human rights. This popular view proceeds from a theoretical misunderstanding of the positivist concept of immunities resulting in its practical misapplication. However, this naturalist view must be contextualised within the subtleties of international rule-making. It is to this end that the inquiry into Head of state immunity as a concept of customary international law, emergent trends and the formation of a new rule of custom in this regard is necessitated. Thus, this thesis will inquire into the applicability, or otherwise, of Head of state immunity before certain fora, including national courts, international courts, and internationalised courts with view to discerning emergent trends in the practice of Head of state immunity. Thematic in this thesis, is the argument that a provision in the constitutive instrument establishing the jurisdiction of a court which makes irrelevant the fact of official capacity as Head of state, without more, cannot remove the immunities of Heads of states under customary international law. This thesis will undertake its analysis from the perspective of the nature of the constitutive instrument establishing an international court and the extent to which states are bound by the instrument. This thesis will conclude this inquiry by considering the extent to which the trends elicited in the substantive part of the work have changed customary international law and the extent to which there can be said to be a new international law on Head of state immunity.
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Gebremeskel, Wintana Kidane. "Sitting head of state immunity for crimes under international law : conflicting obligations of ICC member states?" University of the Western Cape, 2016. http://hdl.handle.net/11394/5515.
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Magister Legum - LLMSitting head of state immunity for crimes under international law has been a very controversial issue in recent times. On the one hand, the debate bears that personal immunity has been renounced for crimes under international law. On the other hand, the advocates of personal immunity claim that the principle of immunity is still persisting under customary International law. Although the International Criminal Court (ICC) is a treaty based court, it is able to extend its jurisdiction to non-state parties to the Rome Statute through a referral by the United Nations Security Council. Lacking its own enforcement body the ICC relies on the cooperation of other states for arrest and surrender of those it indicts. The extension of the court's jurisdiction to non-state parties, such as the case of Sudanese President Omar Al Bashir, has led to the reluctance of state parties to the Rome Statue to effect arrest and surrender citing a 'dilemma between two conflicting obligations'. This paper analyses the legal status of personal immunity before different fora such as International tribunals, foreign domestic courts and under customary international law. It also critically examines the legal basis for the alleged conflicting obligations of state parties. The paper at the end concludes that there is no conflicting obligation for states parties to fully co-operate with the ICC and the lack of co-operation in the arrest and surrender of a sitting head of state is inconsistent with international law particularly with United Nation Charter and the Rome Statute.
German Academic Exchange Service (DAAD)
3
Staker, Christopher Robert. "Acts of foreign States in municipal law." Thesis, University of Oxford, 1991. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.334169.
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Bankas, Ernest Kwasi W. "International law : state immunity and the controversy of private suits against sovereign states in domestic courts." Thesis, Durham University, 1999. http://etheses.dur.ac.uk/4793/.
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Alebeek, Rosanne van. "The immunity of states and their officials in the light of international criminal law and international human rights law /." [Leiden] : E. M. Meijers Inst, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/525676961.pdf.
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Mahdizadeh, Kasrineh Hossein [Verfasser], and Stefan [Akademischer Betreuer] Oeter. "Immunity of Heads of State and its Effects on the Context of International Criminal Law / Hossein Mahdizadeh Kasrineh. Betreuer: Stefan Oeter." Hamburg : Staats- und Universitätsbibliothek Hamburg, 2012. http://d-nb.info/1023947587/34.
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Adonis, Bongiwe. "Immunity for serving Heads of State for crimes under International Criminal Law: an analysis of the ICC-indictment against Omar Al Bashir." University of the Western Cape, 2011. http://hdl.handle.net/11394/2910.
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Magister Legum - LLMThis paper analyses head of state immunity, a traditional rule of international law, in relation to the indictments by the International Criminal Court (ICC) in 2009 against the current Sudanese President Omar Hassan Ahmad Al Bashir. It can be agreed that the doctrine of immunity in international law attempts to overcome the tension between the protection of human rights and the demands of state sovereignty. The statutes and decisions of international criminal courts make it clear that no immunity for international crimes shall be attached to heads of states or to senior government officials. However, the case against the Sudanese President, where the jurisdiction of the ICC was triggered by the UN Security Council‟s referral of the situation in Darfur to the Court, represents the first case where a serving head of state has, in fact, been indicted before the ICC. From this case, a number of legal issues have arisen; such as the questions where the ICC‟s jurisdiction over an incumbent head of state, not party to the ICC Statute, is justified, and the obligations upon ICC state parties to surrender such a head of state to the requesting international criminal court. This paper gives an analysis of these questions.
South Africa
8
Mugemangango, Paul. "Immunity from prosecution for genocide, crimes against humanity and war crimes: the case of heads of state." Diss., University of Pretoria, 2004. http://hdl.handle.net/2263/1088.
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"It is an accepted norm of international law that sitting heads of state have immunity from criminal prosecutions. A head of state is normally entitled to immunity from prosecution anywhere, even after he or she is no longer the head of state. However, in recent years we have witnessed the dramatic shift from this customary international law principle where some jurisdictions have been arresting, or threatening to arrest, former and sitting heads of state in order to institute criminal prosecutions against them. There is, however, no uniformity in the application of this action. Those jurisdictions that determine who is to be arrested or prosecuted are so selective that not all those alleged to have committed these crimes are arrested or prosecuted. On the other hand, existing jurisprudence on this subject is not firm in its application. This problem, therefore, calls for harmonisation of the application of the principle of immunity for heads of state in order to make international law reflect the real consent of states. ... The study is divided into four chapters. Chapter one addresses the background on which the study is premised, outlines the statement of the problem, objectives and their significance and the literature review. Chapter two discusses the principle of immunity as developed by prominent international lawyers, courts decisions and other generally applied principles in international law. Chapter three takes the practical application of the principle of head of state immunity against criminal prosecution in interantional law. This involves an examination of the application of the principle from selected national jurisdictions and by the International Court of Justice. Chapter four concludes the discussion and provides for necessary recommendations on the way forward." -- Introduction.Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2004.
Prepared under the supervision of Dr. Henry Onoria at the Faculty of Law, Makerere University, Kampala, Uganda
http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html
Centre for Human Rights
LLM
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Ozdan, Selman. "The human rights challenge to immunity in international law." Thesis, Queen's University Belfast, 2016. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.709867.
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The aim in this Thesis is to present a detailed analysis of the immunity versus impunity debate within the framework of a human rights-based challenge to immunity. There are two essential interests in international law: preserving the immunity of States and those who represent them, such as Heads of State and diplomatic agents; and protecting fundamental human rights which fall within the scope of peremptory norms of general international law. Several cases which are recently before international and national courts demonstrate that the protection of fundamental human rights is a significant challenge to the immunities. This Thesis focuses on the tension between the protection of fundamental human rights on the one hand, and the bestowal of immunity on the State and its representatives on the other. It examines the extent to which the tension affects the sovereign structure of the State, and seeks to ascertain how these immunities can be gradually eroded, if not fully abolished, in order to maintain full protection of fundamental human rights under international law. It argues that immunity should not equate to impunity when violations of fundamental human rights recognised as jus cogens norms are committed by States, Heads of State, or diplomatic agents. To make the case, this Thesis sets out the organic structures of the concepts of sovereignty and fundamental human rights. It then examines the human rights-based challenge to immunity in three instances: State immunity, Head of State immunity, and diplomatic immunity. This Thesis, in so doing, puts the notion of fundamental human rights at the centre of the immunity versus impunity debate; and, the transition from a State-centric system to a human-centric system under the microscope.
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Bykhovskaya, Ekaterina. "State immunity : Russian perspective in the context of international practice." Thesis, University of Essex, 2005. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.412340.
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Rodrigues, Guilherme Bonácul. "State Immunity and Human Rights Before National and International Courts." Universidade de São Paulo, 2016. http://www.teses.usp.br/teses/disponiveis/2/2135/tde-29072016-050908/.
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State immunity has undergone major changes over time and is still a highly controversial and hotly debated topic. This study aimed to investigate the relationship between human rights and the norms governing state immunity. Located in different geological strata of international law, the clashes between the law of state immunity and human rights drew attention to the struggle among competing conceptions of international law. On one hand, being commonly linked to the principle of sovereign equality and to the need for stability in international relations, state immunity operates when a domestic court cannot exercise jurisdiction over the subject matter of a dispute because one of the parties is a foreign state. On the other, human rights have a different logic and require change and the realization of justice. The development of the body of human rights law allowed to call into question the grant of state immunity in cases in which human rights norms were violated. Legal questions arising from the relationship between state immunity and human rights have been put before domestic and international courts. Having examined the various judgments dealing with these issues, this study contends that the answers to the technical and dogmatic questions originating from the encounter between state immunity and human rights reproduce theoretical conflicts which happen - to use Koskenniemi\'s expression - at a \'higher level of abstraction\'. The ICJ\'s judgment in Jurisdictional Immunities of the State may have crystallized a consensus according to which state immunity trumps the individual\'s right to reparation for serious violations of human rights. This consensus, however, is contingent and can be questioned through the language of international law.A imunidade estatal passou por grandes mudanças através dos tempos e ainda é um tema controverso e bastante debatido. A proposta deste estudo foi investigar a relação entre os direitos humanos e as normas que governam a imunidade estatal. Estando em camadas geológicas diferentes do direito internacional, os choques entre o direito da imunidade estatal e os direitos humanos chamaram atenção para a disputa entre concepções conflitantes de direito internacional. De um lado, sendo comumente relacionada ao princípio da igualdade soberana e à necessidade de estabilidade nas relações internacionais, a imunidade estatal opera quando uma corte não pode exercer jurisdição sobre o objeto de uma disputa em razão de uma das partes ser um estado estrangeiro. De outro, os direitos humanos têm uma lógica diferente e requerem mudança e a realização da justiça. O desenvolvimento do corpo dos direitos humanos permitiu questionar a concessão de imunidade estatal em casos em que normas de direitos humanos foram violadas. Questões jurídicas originadas do relacionamento entre imunidade estatal e direitos humanos foram levadas a várias cortes domésticas e internacionais. Tendo sido realizado o exame dos vários casos lidando com esse assunto, este estudo argumenta que as respostas para as questões técnicas e dogmáticas originadas do encontro entre imunidade de jurisdição e direitos humanos reproduzem conflitos teóricos que ocorrem - na expressão de Koskenniemi - em um \'nível mais elevado de abstração\'. O julgamento da Corte Internacional de Justiça em Imunidades de Jurisdição do Estado pode ter cristalizado um consenso segundo o qual as normas que se relacionam com a imunidade estatal prevalecem sobre o direito individual de reparação por sérias violações de direitos humanos. Tal consenso, no entanto, é contingente e pode ser questionado por meio da linguagem do direito internacional.
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Dang, Hop Xuan. "International law as governing law of state contracts." Thesis, University of Oxford, 2008. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.496437.
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Carlberg, Kristin. "Suing a State for Cross-border Cyber Torts? : Overcoming the Immunity of the Hacking State." Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2017. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-61292.
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Moutzouris, Maria. "Sending and receiving: immunity sought by diplomats committing criminal offences." Thesis, Rhodes University, 2009. http://hdl.handle.net/10962/d1003201.
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Diplomatic immunity is one of the oldest elements of foreign relations, dating back as far as Ancient Greece and Rome. Today, it is a principle that has been codified into the Vienna Convention on Diplomatic Relations regulating past customs and practices. Consuls and international organizations, although their privileges and immunities are similar to diplomatic personnel, do differ and are regulated by the Vienna Convention on Consular Relations and the United Nations International Immunities respectively. These Conventions have been influenced by past practices and by three theories during different era’s namely exterritoriality, personal representation and functional necessity. The Vienna Convention on Diplomatic Relations further provides certain immunities and privileges to different levels of diplomatic officials, their staff and families. Privileges and immunities will be considered under various main categories, namely the diplomatic mission, the diplomatic official, diplomatic staff, and families. Each category receives privileges and immunities, for example immunities enjoyed by the diplomatic mission include mission correspondence and bags. Diplomatic officials enjoy personal inviolability, immunity from jurisdiction and inviolability of diplomats’ residences and property. The staff and families of diplomatic officials too enjoy privileges and immunities. The problem of so many people receiving privileges and immunities is that there is a high likelihood of abuse. Abuses that arise are various crimes committed by diplomats, their staff and families. They are immune from local punishment and appear to be above the local law. Although the Vienna Convention on Diplomatic Relations provides remedies against diplomats, staff and families who abuse their position, it gives the impression that it is not enough. Various Acts in the United Kingdom, United States and the Republic of South Africa will be analysed in order to ascertain what governments have done to try and curb diplomatic abuses. Each will be considered and found that although they have restricted immunity from previous practices it still places the diplomats’ needs above its own citizens. Thus several suggestions have been put forward and argued whether they are successful in restricting immunity comprehensively. Such suggestions are amending the Vienna Convention on Diplomatic Relations; using the functional necessity theory to further limit immunity; forming bilateral treaties between States as a possible means to restrict or limit; and lastly establishing a Permanent International Diplomatic Criminal Court. The key question to be answered is whether diplomatic immunity is needed for the efficient functioning of foreign relations between States.
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Murungu, Chacha Bhoke. "Immunity of state officials and prosecution of international crimes in Africa." Thesis, University of Pretoria, 2011. http://hdl.handle.net/2263/25163.
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This study deals with two aspects of international law. The first is ‘immunity of state officials’ and the second is ‘prosecution of international crimes.’ Immunity is discussed in the context of international crimes. The study focuses on Africa because African state officials have become subjects of international criminal justice before international courts and various national courts both in Europe and Africa. It presents a new contribution to international criminal justice in Africa by examining the practice on prosecution of international crimes in eleven African states: South Africa; Kenya; Senegal; Ethiopia; Burundi; Rwanda; DRC; Congo; Niger; Burkina Faso and Uganda. The study concludes that immunity of state officials has been outlawed in these states thereby rendering state officials amenable to criminal prosecution for international crimes. The thesis argues that although immunity is founded under customary international law, it does not prevail over international law jus cogens on the prosecution of international crimes because such jus cogens trumps immunity. It is argued that, committing international crimes cannot qualify as acts performed in official capacity for the purpose of upholding immunity of state officials. In principle, customary international law outlaws functional immunity in respect of international crimes. Hence, in relation to international crimes, state officials cannot benefit from immunity from prosecution or subpoenas. Further, the study criticises the African Union’s opposition to the prosecutions before the International Criminal Court (ICC). It argues that however strong it may be, such opposition is unfounded in international law and is motivated by African solidarity to weaken the role of the ICC in Africa. It concludes that the decisions taken by the African Union not to cooperate with the ICC are geared towards breaching international obligations on cooperation with the ICC. The study calls upon African states to respect their obligations under the Rome Statute and customary international law. It recommends that African states should cooperate with the ICC in the investigations and prosecution of persons responsible for international crimes in Africa. At international level, the study reveals the conflicting jurisprudence of international courts on subpoenas against state officials. It argues that, state officials are not immune from being subpoenaed to testify or adduce evidence before international courts. It contends that issuing subpoenas to state officials ensures fairness and equality of arms in the prosecution of international crimes. It recommends that international courts should treat state officials equally regarding prosecution and subpoenas. It further recommends that African states should respect their obligations arising from the Rome Statute and that, immunity should not be used to develop a culture of impunity for international crimes committed in Africa.Thesis (LLD)--University of Pretoria, 2012.
Centre for Human Rights
unrestricted
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Franey, Elizabeth Helen. "Immunity, individuals and international law : which individuals are immune from the jurisdiction of national courts under international law?" Thesis, London School of Economics and Political Science (University of London), 2009. http://etheses.lse.ac.uk/309/.
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State immunity under international law extends to protect some individuals from criminal prosecution before national courts. This thesis aims to identify which individuals are immune from prosecution before the English courts, for what conduct, and for what period. The justifications for immunity are examined, and the extent of immunity ratione personae and immunity ratione materiae are explored. This thesis argues that immunity ratione personae is only narrowly available to high state officials, and that the immunity accorded, by consent, to special missions is sufficient to cover other official visits. In Pinochet (No 3) all seven judges agreed: 1. An ex-head of state is immune from prosecution for murder and conspiracy to murder alleged to have been committed in the forum state. 2. All state officials no matter how minor are entitled to continuing immunity This thesis analyses state practice in arresting or prosecuting foreign state officials, and argues that both of these statements are incorrect. This thesis argues that immunity does not attach to conduct alone, for a person to have continuing immunity ratione materiae they must have had immunity ratione personae. The forum state must have agreed to the official being present on its territory, and agreed to the purpose of the visit. Those officials present on the territory of a foreign state with the consent of that state who have immunity ratione personae have continuing immunity ratione materiae only for official conduct, acta jure imperii. This does not extend to acts of violence. Finally the development of the regime for the prosecution and punishment of international crimes by national courts is considered. The conflict with immunity is examined, and a possible reconciliation between the two principles is suggested by using the complementarity principle in the statute of the International Criminal Court.
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Vidmar, Jure. "Democracy and state creation in international law." Thesis, University of Nottingham, 2009. http://eprints.nottingham.ac.uk/11290/.
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At the end of the Cold War some scholars argued that democracy is the only legitimate political system and that this needs to be acknowledged even by international law. This thesis rejects such arguments and takes the position that attributes of statehood are not dependent on type of government. As far as existing states are concerned, democracy is not an ongoing requirement for statehood. The end of the Cold War also coincided with the dissolutions of two multiethnic federations, the Soviet Union and Yugoslavia. The dissolution of Czechoslovakia followed shortly afterwards and subsequently Eritrea, East Timor and Montenegro also became independent states. Most recently, independence was declared by Kosovo. Some of these post-Cold War state creations were subject to significant international involvement, which might have had effects of (informal) collective state creations. This thesis argues that in such circumstances international efforts to create a new state were associated with attempts to implement a democratic political system. On the other hand, where the emergence of a new state was merely a fact (and the international community was not involved in producing this fact), recognition was normally universally granted without an enquiry into the (non-) democratic methods of governments of the newly-emerged states. Apart from democracy as a political system, this thesis is also concerned with the operation of democratic principles in the process of state creation, most notably through the exercise of the right of self-determination. An argument is made that the will of the people within the right of self-determination has a narrower scope than is the case within democratic political theory. Further, while the operation of the right of self-determination requires consent of the people before the legal status of a territory may be altered, a democratic expression of the will of a people will not necessarily create a state. Limits on the will of the people in the context of the right of selfdetermination stem from the principle of territorial integrity of states, protection of rights of other peoples and minorities, and even from the previously existing internal boundary arrangement. In the context of the latter it is concluded that the uti possidetis principle probably does not apply outside of the process of decolonisation. However, this does not mean that existing internal boundaries are not capable of limiting the democratically-expressed will of the people, especially where boundaries of strong historical pedigree are in question.
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Vials, Cora. "State of mind : identity in international law." Thesis, University of Nottingham, 2004. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.413591.
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Shortell, Christopher. "Rights without a remedy : state sovereign immunity and the challenges of democratic accountability /." Diss., Connect to a 24 p. preview or request complete full text in PDF format. Access restricted to UC IP addresses, 2004. http://wwwlib.umi.com/cr/ucsd/fullcit?p3130200.
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Manton, Ryan. "Necessity in international law." Thesis, University of Oxford, 2016. https://ora.ox.ac.uk/objects/uuid:0ee2dd8e-6eac-4364-b538-21ae5eb932a2.
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This thesis examines the role of necessity, as a defence to State responsibility, in international law. Necessity provides a State with a defence to the responsibility that would otherwise arise from its breach of an international obligation where the only way that State can safeguard an essential interest from a grave and imminent peril is to breach an obligation owed to a less imperilled State. It is a defence that has generated a considerable body of jurisprudence in recent years and yet it continues to be plagued by a perception that States have abused it in the past and by fears that States will abuse it in the future - 'necessity', declared the German Chancellor on the eve of World War I, 'knows no law'. This thesis contends that this perception is flawed and these fears are unfounded. The main claim of this thesis is that necessity operates as a safety valve within the law of State responsibility that mediates between the binding quality of international obligations and the harsh consequences that may follow from requiring compliance with those obligations at all costs. This safety valve promotes the reasonable application of international law and it recognises that international law must sometimes bend so that it does not break. The thesis bears out this claim by contending that necessity has a stronger pedigree than is commonly appreciated and that it is solidly grounded in, and its contours are constrained by, customary international law. It charts those contours by first examining the scope of the obligations to which necessity may provide a defence, which includes examining how necessity relates to fields of law that contain their own safety valves regulating emergency situations. It then proceeds to examine the conditions that a State must satisfy in order to establish necessity and it finally examines the consequences of necessity, including for the stability of international law. The thesis concludes that any suggestion that 'necessity knows no law' has no place in international law today.
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Pusztai, David Miklós. "Causation in the law of State responsibility." Thesis, University of Cambridge, 2017. https://www.repository.cam.ac.uk/handle/1810/267922.
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Causation has, at the very minimum, two functions in legal responsibility regimes. First, there is no responsibility without a conduct with causal consequences, making causation a condition of responsibility. Second, causation determines and delimits the extent of liability. The first claim of this study is that the decision of the International Law Commission to construct a responsibility regime unconditional on damage did not result in the exclusion of causation from the conditions of responsibility. There are at least two signs demonstrating that the attempt to exclude responsibility-grounding causation from State responsibility did not hold ground in practice. First, there is abundant case law pre- and postdating the codification of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), confirming that responsibility-grounding causation exists in international law. Second, notwithstanding the denial of ARSIWA and its commentaries, reading between the lines reveals that several concepts of State responsibility are of a causal nature and their application inevitably implies a causal inquiry. There are two interrelated explanations for this. First, at the heart of the system of State responsibility lies the concept of the ‘internationally wrongful act’. I argue that the law of State responsibility lacks a coherent action theory. In particular, a causal theory of action would explain several anomalies visible in the case law. The second explanation rests on approaching causation in the law of international responsibility as a general principle of law. The prevailing view in the case law and the academic contributions is that causation and, more specifically, certain standards of causation are general principles of law. In making the second claim of this thesis, I will argue that this is only partially true. Causation is a general principle in as much as the existence of a causal link is a condition of responsibility and one possible condition of delimiting liability. ARSIWA therefore runs contrary to this general principle. However, the authorities arguing for a specific test of causation, be it directness, proximity, foreseeability or other tests, do not have a substantial basis to do so. What remains, as an empirical and inductive method in line with Article 38 (1) d) of the ICJ Statute, is to distil the actual practice of international courts and tribunals. My third claim is that there is merit in this exercise and it is possible to identify recurring solutions to recurring problems of causation. This study is the second one to conduct this survey and analysis of the case law, following the footsteps of Brigitte Stern, updating and complementing her otherwise exhaustive and authoritative text on the subject. The thesis concludes with a list of the distilled principles and postulates on respective problems of causation, in particular on the applicability and the limits of the ‘but for’ test, the applicable standard of remoteness, multiple causation and contributory negligence.
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Carter, David John. "International law and state failure : Somalia and Yugoslavia." Thesis, University of Southampton, 2000. https://eprints.soton.ac.uk/193199/.
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The present study considers the treatment of failed States in international law. State failure represents a relatively recent phenomenon, which presents novel problems for the international community to deal with. For international law, the principles and experience of dealing with the creation, continuity and extinction of States present the nearest analogies, and so will form the basis of its responses to failure. Failure is defined as governmental and societal collapse in a State, so severe as to render it incapable of exercising internal and external sovereignty. It is likely to take the form of either conflictual implosion - such as in Somalia; or fragmentary explosion - as in Yugoslav ia. Accordingly, an examination of the treatment of these two failed States, during the early 1990s, provides the substantive basis of the study. The key aspects of Statehood under which the study proceeds are: loss of government as a criterion of Statehood; self-determination, including the emerging right of democratic governance; and recognition. Consideration of the Somali and Yugoslav experiences of failure, and their treatment under the three areas identified, evidences a strong inertia in the international system against findings of State failure - the Somali experience. The only exception is if such a finding is coupled with a potential solution, such as the possible emergence of new States - the Yugoslav experience. The determinations constitute a meta-legal process, which can be seen as indicative of a new conception of 'political international law'.
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Ciger, Meltem Ineli. "Temporary protection in international law and state practice." Thesis, University of Bristol, 2015. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.687195.
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Contemporary armed conflicts, especially civil wars, create massive displacements. Well defined and effective protection mechanisms are necessary to make sure the displaced persons receive adequate protection and states receiving the influx are able to cope with the pressure. Not all persons displaced by an armed conflict can be protected within the Convention Relating to the Status of Refugees, but states have an obligation under customary international law to provide refuge to persons fleeing persecution, torture and immediate harm to their life and physical integrity. This thesis demonstrates that temporary protection can provide a viable framework to respond to large scale influx of persons fleeing armed conflict that will cover the protection gaps in the 1951 Convention and the state obligation to provide refuge. Temporary protection is not new and it has been used in the past by states in response to mass population movements. However, the legal basis of temporary protection is not clear. There is no structured legal framework regulating temporary protection at an international level and there are very few legal instruments providing states with guidance on how to introduce and implement a temporary protection regime. Addressing these issues, this thesis clarifies the legal basis for temporary protection, identifies the elements of a viable temporary regime and makes a comprehensive analysis of different temporary protection practices. Building on these assessments, this thesis offers guidance on how to introduce and implement a temporary protection regime which operates within the boundaries of international law and human rights without compromising the elements that make it a practical and efficient framework to cope with mass influx situations. By following the proposed guidance, states can introduce and implement a practical and efficient protection regime that ensures the fundamental human rights and freedoms of persons fleeing armed conflict.
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Decœur, Henri Bernard Louis. "Confronting the shadow state : developing international legal responses to state organised crime." Thesis, University of Cambridge, 2015. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.708711.
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Assaduzzaman, Assad Khan. "Agreements of state-entity and state liability in international investment arbitration." Thesis, University of Southampton, 2013. https://eprints.soton.ac.uk/348851/.
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Most often in an investment agreement between a State entity and a foreign investor the arbitral tribunal is faced with the question of the liability of the State for the conduct of its entities. To make it precise the crucial findings of this research is whether or to what extend the States hall be liable for the commercial conduct of its entities? State affiliates in general includes, ‘state organ, ‘state agency’, ‘instrumentality’, ‘state-owned entity’, ‘state-owned company’, ‘publicly owned corporation’, ‘government business enterprise’, ‘public sector undertaking’ and ‘parastatal entity’. ‘State entities’ with separate legal personality do not include the ‘state organ’, ‘agency’ and ‘political subdivision’ for which a State is responsible under the principle of customary international law. The main highlights of this research is whether the State shall be liable for the commercial, non-governmental activities of ‘State entities’ with separate legal personality having substantial structural and functional government control over them while they enter into investment agreements with foreign investors. This leads to the critical arguments to establish in the first place whether the State is a party to the investment agreements of its separate legal entities with foreign investors. To respond this, findings of this research leads to the point that has been highlighted in relation to the true separation of these State entities from the government. It is that the significance of structural and functional control by the governmental over the habitual affairs of these entities. For this purposes two significant reasons are taken into consideration. First, whether the government officials or members of the cabinet preside as the head of the corporations or entities? Second, whether they administer the daily affairs of the entities such as participating in the negotiation and decision making process while entering into the agreement with foreign investors. If that is satisfied then the requirement for a State to be a party to the investment agreement of its entities is considered fulfilled. The most striking point of this research is then whether the State and its entities are entitled to immunity both from jurisdiction and execution. However, following the greater participation of State through State entities in the international trade and foreign investment the restrictive approach of immunity has seen a resultant raise in relation to the jurisdiction of arbitral tribunal. As regard to immunity from the enforcement measure the final stumbling block is the process of identification of public assets which are held by the State to perform its sovereign non-commercial functions often mixed with the assets allocated for commercial purpose against which enforcement can be done, is continued to be an issue at large. The emphasis of this research has been extended to have a closer look at the State immunity laws internationally in relation to the limitations of various conventions and codifications and judicial precedent that address the issue of enforcement in investment arbitration.
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Corbetta, Renato. "State partisan interventions in international conflicts." Diss., The University of Arizona, 2004. http://hdl.handle.net/10150/280684.
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The dissertation explores the phenomenon of joining behavior--non-neutral interventions by third party states in interstate conflicts. The opportunity and willingness theoretical framework (Most and Starr 1989) is used to develop a model of third party intervention that integrates simultaneously intervention decision, alignment choices, and selection of specific intervention techniques. Within the general model of third party intervention, two models of third party's preference formation--a rational choice and a homophily-based model--are compared. The models are empirically tested with newly collected data on interventions in interstate disputes for the 1946-2001 period. The data expand current knowledge on third states' activities by including information on non-military--diplomatic and economic--intervention techniques. Opportunity factors are found to predict effectively third parties' intervention; while willingness shapes alignment decisions and selection of intervention techniques. Strategic and homophily-based similarities with the state supported in a conflict and dissimilarities with the state being antagonized are found to matter equally in shaping third parties' decisions. Methodologically, this study addresses a variety of selection issues present in current research on joining behavior. Theoretically, it speaks to a variety of international relations issues, such as balance-of-power and bandwagoning, spatial diffusion of conflict, foreign policy substitutability and decision-making, and alliance formation and reliability.
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Okowa, Phoebe Nyawade. "State responsibility for transboundary air pollution in international law." Thesis, University of Oxford, 1994. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.359957.
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Wang, L. "State-owned enterprises and the international investment law regime." Thesis, University of Liverpool, 2017. http://livrepository.liverpool.ac.uk/3018906/.
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Saul, Matthew William. "State reconstruction in international law : conjuring with political independence." Thesis, University of Sheffield, 2008. http://etheses.whiterose.ac.uk/10324/.
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This is a study about large-scale international involvement in the reconstruction of a state without an independently effective domestic government. Specifically how the practice in Cambodia, Haiti, Bosnia and Herzegovina, Sierra Leone, Kosoyo, East Timor, Afghanistan, and Iraq, relates to the right of the target state and its people to political independence. The international involvement, particularly its legal justification, is analysed from the perspective of the right to political independence and the core UN system values of self-determination of peoples and international peace. From this analysis, an opinion is formed on what explains intenlational acceptance of a practice that struggles to remain consistent with the legal structures and political values of the inter-sovereign relations paradigm of the international system. This is argued to rest on the pursuit of democratic reconstruction. The absence of a legal concept of democracy, in the practice analysed, is the basis for the thesis that: when there is not an independently effective domestic government, there is a need for greater international legal regulation and accountability of those - both the domestic and international actors - that exercise the right to political independence for the purpose of state reconstruction. This is to compensate for the lack of assurance that the process reflects the wishes of the state and its people, which is a threat to the core UN system values of self-determination of peoples and international peace.
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Jackson, Miles. "Complicity in international law." Thesis, University of Oxford, 2013. http://ora.ox.ac.uk/objects/uuid:4f6db506-c5a7-43d6-af49-fec9ad2d7461.
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This thesis is concerned with the ways in which international law regulates state and individual complicity. Complicity is a derivative form of responsibility that links an accomplice to wrongdoing by a principal actor. Whenever complicity is prohibited, certain questions arise about the scope and structure of the complicity rule. To answer these questions, this thesis proposes an analytical framework in which complicity rules may be assessed, and defends a normative claim as to their optimal structure. This framework and normative claim anchor the thesis’ analysis of complicity in international law. The thesis shows that international criminal law regulates individual complicity in a comprehensive way, using the doctrines of instigation and aiding and abetting to inculpate complicit participants in international crimes. These doctrines are marked by the breadth of the complicit conduct prohibited, a standard of knowledge in the fault required of the accomplice, and an underused nexus requirement between the accomplice’s acts and the principal’s wrong. In contrast, international law’s regulation of state complicity was historically marked by an absence of complicity rules. In respect of state complicity in the wrongdoing of another state, international law now imposes both specific and general complicity obligations, the latter prohibiting states from aiding or assisting another state in the commission of any internationally wrongful act. In respect of the ways that states participate in harms caused by non-state actors, the traditional normative structure of international law, which imposed obligations only on states, foreclosed the possibility of regulating the state’s participation as a form of complicity. As that traditional normative structure has evolved, so the possibility of holding states responsible for complicity in the wrongdoing of non-state actors has emerged. More and more, both the wrongs that international actors commit, and the wrongs they help or encourage others to commit, matter.
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Perry, Melissa Anne. "State succession, boundaries and territorial regimes." Thesis, University of Cambridge, 1995. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.338260.
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Karlén, Louise. "State Responsibility Regarding Starvation in Non-International Armed Conflicts." Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-81618.
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Lindén, Johan. "Immunity of International Organizationsand the Right of Access to Justice for Individuals." Thesis, Uppsala universitet, Juridiska institutionen, 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-359979.
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International Organizations are a growing force in the global arena. While themandate and influence of the UN has increased over the last decades, the existinglegal regime regarding privileges and immunities remain the same as they were atthe founding of the organization. This has led to mass tort claims towards the UN,stemming from damages caused by the organizations. These damages often consistof human rights violations, something the organization is generally regarded as aprotector of, rather than violator.As individuals seek to obtain reparations and remedies for the damages inflictedupon them, they are generally obstructed by the claim for immunity by theinternational organization. This constitutes a conflict of competing interests thatthe domestic courts must address and solve. This conflict is central to my thesis,as I will discover how this issue has been tackled by the national as well asinternational courts, and which consequences the current legal practice has for theindividuals. The thesis concludes with a discussion on what needs to be done inorder to bridge the current accountability gap created by the immunity ofinternational organizations.
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Abdel, Rahman El Faith El Rasheed. "Egyptian and Sudanese practice on state immunities, with particular reference to the Islamic perspective." Thesis, University of Edinburgh, 1988. http://hdl.handle.net/1842/25360.
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Awojobi, Adeola Falilat. "Confidentiality and third party participation in international investor-state arbitration." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15187.
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The contractual nature of arbitration as a form of alternative dispute resolution in the context of cross-border/international disputes traditionally emphasises confidentiality as one of the fundamental characteristics of international arbitration. Confidentiality is often assumed to be a common feature and advantage of international commercial arbitration, and the privacy of arbitral proceedings has facilitated and encouraged recourse to arbitration. However, the issue of confidentiality has a different dimension and is limited in the context of international investment and trade disputes. The participation of States, State entities, sub-divisions and agencies in international disputes shifts the emphasis from privacy and confidentiality to transparency and accountability. This study analyses the role of confidentiality in investor-State arbitration, noting that confidentiality is not always preserved in many respects and stages throughout the arbitration proceedings. The paper considers the issues that challenge the legal effectiveness of confidentiality in international investor-State arbitration and the development towards transparency. In particular, the paper examines the participation of non-disputing/third parties in investor-State arbitration, the different approaches of major arbitral institutions towards the issue of confidentiality, and the arguments for and against confidentiality in relation to transparency. It concludes by making recommendations in the context of the development of investor-State arbitration.
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Jørgensen, Nina Helene Borlase. "State responsibility for the Commission of Crimes Against International Law." Thesis, University of Oxford, 1998. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.264881.
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Davis, Brandon S. "State Cyber Operations and International Law: Russian and Western Approaches." The Ohio State University, 2018. http://rave.ohiolink.edu/etdc/view?acc_num=osu1523531316393533.
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Pothier, Ann Frédérique. "Leading international aviation towards globalization : the new relationship among carrier alliances, open skies treaties and antitrust immunity." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1997. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp01/MQ44073.pdf.
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Reinhardt, Dean N. "The vertical limit of state sovereignty /." Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=83956.
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There is no international agreement on the vertical limit of State sovereignty, the boundary between territorial airspace and outer space. The need for defining this boundary has been debated for over 50 years. Today, the need to settle this gap in the law is growing in importance. This thesis concludes that setting a low vertical limit on State sovereignty is the best approach because it will allow all States free access to space and enable uniform international rules to be set at a relatively low altitude.Chapter I discusses territorial sovereignty and examines the evolution of vertical sovereignty. It then compares this to the evolution of the law governing territorial seas and concludes by examining the airspace laws of several States. Chapter II reviews the reasons demarcation is important. Chapter III discusses past proposals for demarcation and recommends setting a low vertical limit on State sovereignty.
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Che, Luyao. "Chinese state capitalism and the international economic order." Thesis, University of Nottingham, 2017. http://eprints.nottingham.ac.uk/41892/.
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State capitalism, which refers to an economic system wherein the state maintains a guiding role in the economy based on the functioning of a market mechanism that is instrumental to the state, has experienced a rapid proliferation during recent decades. As a typical example of a state capitalist country, China has developed a highly institutionalised economic system characterised by a deep integration between the state and the market. This thesis aims to answer the questions as to how and why the rise of Chinese state capitalism has challenged the existing international economic order. It begins with an exploration of the ways in which Chinese state capitalism functions, submitting that the state simultaneously fulfils a triple role when intervening in the market, namely that of a planner, competitor, and a regulator. This research then doctrinally analyses the legal instruments adopted by China to advance its state capitalist practice, through which it argues that, compared to public law, private law has assumed greater importance in underpinning Chinese state capitalism. Next, by exploring both the world trading system and the international investment regime, the thesis contends that the international economic order has a limited ability to properly respond to the development of China’s state capitalism. The reason behind the limitation results from a failure to understand China’s contemporary state capitalism as an economic model that transcends the traditional market-state paradigm long-held by orthodox capitalism.
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Xu, Xiaofei. "International protection of civil rights versus state sovereignty." Thesis, University of Ottawa (Canada), 1993. http://hdl.handle.net/10393/6603.
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Lara-Cabrera, Erasmo Alonso. "Non-state actors and adjudication by international tribunals : the test of international environmental law." Thesis, University of London, 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.401785.
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Issa, Carla Maria. "State Responsibility under International Law the 2003 U.S. Invasion of Iraq." Thesis, The American University of Paris (France), 2019. http://pqdtopen.proquest.com/#viewpdf?dispub=13871616.
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Pamborides, George Pan. "The impact of public international law on private shipping law : the effect of the modern international legislative and enforcement practices on certain principles of maritime law." Thesis, University of Southampton, 1997. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.264650.
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STEVIS, DEMETRIOS. "THE EXPANSION OF STATE JURISDICTION AND INTERNATIONAL ORDER: THE CASE OF THE INTERNATIONAL SEABED AREA." Diss., The University of Arizona, 1987. http://hdl.handle.net/10150/184099.
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In 1982 the USA and other major industrial states refused to sign the Convention on the Law of the Sea--the result of the Conference on the Law of the Sea--because of objections to its provisions on the seabed beyond state jurisdiction--the International Seabed Area. According to them the system set up by the Convention is favorable to the third world and inimical to the material and ideological interests of these industrial states. Concurrently, however, the US and its allies argue that the remaining provisions of the Convention are generally accepted and part of International Law. These provisions include, among other, transit passage through straits, the 12nm Territorial Sea, the 200nm Exclusive Economic Zone and the Continental Shelf. In opposition to the Convention's seabed system the US has promoted efforts at a Reciprocating States' Agreement which, thus far, has resulted in a Provisional Understanding among eight western states. In this work I argue that the limits of state jurisdiction are not conclusively set and that both the Exclusive Economic Zone and the Continental Shelf are subject to political and legal challenges. Moreover, these challenges will grow stronger because of competition, primarily among the major industrial states, over the resources and the military and waste disposal uses of the seabed and because of the inconsistencies of major maritime states in their defense of narrow zones of coastal jurisdiction. With respect to the argument of the US and some of its allies that the deep seabed provisions of the Convention are beneficial to the third world and inimical to the major industrial states I suggest that this is not the case. In fact, the major industrial states are the primary beneficiaries of the Convention's seabed resource system, as they are the beneficiaries of the systems regulating the military and waste disposal uses of the High Seas and the international seabed. The core characteristic of the resource system, however, is the protection it offers to the less endowed among these industrial states and to the major industrializing states. Inasmuch as the Provisional Understanding does not protect these states--most of which are in a position to challenge a variety of the Convention's remaining provisions--the Reciprocating States' Agreement strategy is conflictual and destabilizing.
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Cox, Marcus. "The making of a Bosnian State : international law and the authority of the international community." Thesis, University of Cambridge, 2001. https://www.repository.cam.ac.uk/handle/1810/272101.
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Verheyen, Roda. "Climate change damage and international law : prevention duties and state responsibility /." Leiden [u.a.] : Nijhoff, 2005. http://www.gbv.de/dms/sbb-berlin/50232872X.pdf.
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Broomhall, Bruce. "Between state consent and the rule of law : the emerging system of international criminal law." Thesis, King's College London (University of London), 2001. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.249246.
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Mustapha, Mala. "State, conflict and political economy of oil in Nigeria." Thesis, University of Central Lancashire, 2013. http://clok.uclan.ac.uk/10966/.
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This thesis explores the nature, cause and dynamics of the conflict in the oil-rich Niger Delta region of Nigeria. The region has become a hot spot for increased oil insurgency and well-organized criminal activity in the wake of the 1999 transition to democratic rule. The main contribution of this study lies in its use of the political economy theory of the state and the post-colonial characterization of the Nigerian state to analyse and explore specific role of the Nigerian state in the oil conflict. The research critiques past studies in the field as “grand narratives” based on assumptions of international political economy of resource conflicts not least the rentier state and resource curse theses. Through a case study of the state-owned oil industry the Nigerian National Petroleum Corporation (NNPC) and Vanguard Newspaper representing a section of the media the thesis problematized the oil conflict in the Niger Delta to failure of democratization to address decades of conflict, politicization of ethnicity, descent to terminal spoils via oil bunkering and flaws in the country’s federalism. The study critically interrogates the legal/institutional as well as militaristic response of the state to the conflict as state-centric and factors spurring the conflict. The findings reveal that the conflict is rooted in factors affecting the control, management and distribution of oil resources by a centralized federal structure characterized by a failure of governance. In other words, the conflict dynamics of the Delta is explained by total failure of oil-wealth to foster development. Instead, it impedes political development, generates conflict over resource distribution, fuels ethnic conflict and fragmentation, and institutionalized corruption all spawned by rise in government oil largesse. Since the return of democracy in 1999, lack of genuine democratization in Nigeria, has crippled even nascent attempts at reform resulting to socio-economic stagnation, which relates directly to the rising trend of violence in the region. One of the key contributions of the study also is through an analysis of “illegal oil bunkering” as an empirical case of how legal/institutional failure of the state to response to the crisis and a reflection of descent to terminal spoil in the Nigerian oil industry led to spoils of oil violence. The research critically examines how oil bunkering has damaged the environment through oil spillage and contributes to proliferation of small arms and light weapons in the region. Finally, the thesis also suggests that, the potential solution to the Niger Delta crisis lies in governance and constitutional reform that focuses on correcting the structural imbalances embedded in the nature of Nigerian fiscal federalism, its revenue allocation formula and to effectively fight corruption at all levels of governance. The Nigerian state should also abrogate or review specific oil-related laws that serve as a fault-line of conflict with the oil producing communities. Failure to tackle this problem will allow the self-destructive cycle of violence to continue to undermine reform initiatives and perpetuate the region’s instability.
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Paddeu, Federica Isabella. "General defences to breaches of international law : justification and excuse in the law of state responsibility." Thesis, University of Cambridge, 2014. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.648758.
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