This study explores the duty to investigate potential violations of the law during armed conflict, and does so under international humanitarian law (IHL), international human rights law (IHRL), and... Show moreThis study explores the duty to investigate potential violations of the law during armed conflict, and does so under international humanitarian law (IHL), international human rights law (IHRL), and their interplay. Through a meticulous comparative legal analysis, it maps out the scope and contents of investigative obligations. On the basis of general international law, it also develops and applies a step-by-step methodology for resolving issues of interplay between both legal regimes. In doing so, this study clarifies the scope of application and contents of investigative obligations under both legal regimes, as well as for situations to which both apply. The study finds that the oft-heard narrative that to require States to conduct human rights investigations during armed conflict would impose inordinate burdens on them, and would be wholly unrealistic in light of the realities of hostilities, is unfounded and in need of revision.The methodology which this study develops for resolving issues of interplay lends itself to broader application than this research project alone, and can guide future research into issues of interplay. Show less
This thesis explores the application of the United Nations Convention on the Rights of the Child, 1989 (‘the CRC’) by domestic courts, in the light of the formal domestic rules which govern the... Show moreThis thesis explores the application of the United Nations Convention on the Rights of the Child, 1989 (‘the CRC’) by domestic courts, in the light of the formal domestic rules which govern the relationship between international treaties and domestic law. The focus is on three legal systems – Australia, France and South Africa – purposefully selected to represent three different reception models: dualist, monist and hybrid respectively. The thesis demonstrates that the formal rules of reception are only a starting point for the courts, but do not always explain why, how and with what consequences the courts have given effect to the CRC. The courts have applied the CRC creatively, building on the strengths of their respective systems and sometimes compensating for potential vulnerabilities in the domestic reception framework. The thesis calls for, inter alia, a recognition of the complex position of the courts at the intersection between domestic and international law; and for a closer exploration of the added value of the Convention in relation to other legal instruments. It also encourages a dialogue between the CRC Committee and the courts in relation to the interpretation of the CRC. Show less
International law relies heavily on the machinery of the state for therealisation of its aims. Often those aims require further implementation inthe legal orders of states. States, in turn, enjoy a... Show moreInternational law relies heavily on the machinery of the state for therealisation of its aims. Often those aims require further implementation inthe legal orders of states. States, in turn, enjoy a wide margin of freedom inthe choice of means and methods to fulfil their obligations under internationallaw. However, implementation sometimes requires the involvement ofthe state body entrusted with the task of adopting legislation: the nationallegislature. This study explores its role in the implementation of internationallaw at home. It analyses the regulation of national implementing legislationunder international law. Does international law provide for requirements tobe observed by national legislatures involved in the adoption of implementinglegislation? If so, is their application in practice sufficient to ensure thequality of national implementing legislation? Can we improve national andinternational practice in this regard? Show less
This study offers an overview of the challenges occurring in the emerging regime of international criminal justice as a tool of sustainable peace. It illustrates the impact of such regime in... Show moreThis study offers an overview of the challenges occurring in the emerging regime of international criminal justice as a tool of sustainable peace. It illustrates the impact of such regime in international law and international relations focusing on the obstacles and concerns of its governance in the context of the maintenance and restoration of international peace and security. It advocates for an appropriate interaction strategy between the United Nations and the Rome Statute institutions as a matter of international mutual concern and for the sake of human security. Show less
The book sets out an analysis of how the law is used as a means to remove decision-making rights from people with mental health issues and people with intellectual disabilities. It explains how... Show moreThe book sets out an analysis of how the law is used as a means to remove decision-making rights from people with mental health issues and people with intellectual disabilities. It explains how international law can be used to repatriate these rights. Show less
This Thesis aims to show the necessity and benefits of historically self-aware legal theory and practice in preventing and resolving conflicts that have a religious dimension. Contrary to Iberian... Show moreThis Thesis aims to show the necessity and benefits of historically self-aware legal theory and practice in preventing and resolving conflicts that have a religious dimension. Contrary to Iberian and French colonial projects, early modern Dutch and English thinkers developed ways to encounter non-European legal systems without having to take a position on issues like missionary obligation, forcible conversion, or non-Christians’ right to property and sovereignty. This colonial advantage was a corollary of secularising ideas and steps to improve domestic stability in a time of religious conflict, including the deprioritisation of divine laws, refuting chosen nation ideologies, and subverting theology’s claim to epistemic supremacy. The new system reduced the economic and ideological costs of imperialism. Understood as a contingent, cumulative and incomplete process, and partially the unintended consequence of limited designs for stability and peace, secularisation is a useful concept in legal historiography. The examination of Dutch and English secularisation and soft imperialism offers a new perspective on the decline of French and Iberian early modern empires, and eighteenth- and nineteenth-century exceptionalisms. Further, it sheds light on why, when and how public international law became desensitised to the contingency of secularisation as a process, and secularism as a norm Show less
The thesis analyses international law and practice in relation to terrorism and counter-terrorism in the post 9/11 environment. It finds terrorism to be a term of acute and wide-ranging political... Show moreThe thesis analyses international law and practice in relation to terrorism and counter-terrorism in the post 9/11 environment. It finds terrorism to be a term of acute and wide-ranging political significance yet one which is not defined under generally accepted treaty or customary international law. Despite this, a detailed international legal framework existed before 9/11 but has been supplemented since then, that provide the parameters for state responses to international terrorism. The thesis explores the proliferation of counter-terrorism practice on national, regional and international levels since 9/11 alongside this framework. Many particular responses and the legal issues they give rise to are explored, including Guantanamo and other examples of arbitrary detention, extraordinary renditions, targeted killings, terrorism trials, the erosion of safeguards against torture, sanctions regimes, surveillance pr actices, the prohibition on ‘association’ and the increasingly ‘preventive’ role of criminal law. It is suggested that this practice does not reveal seismic Grotian moments of international legal transformation, gaping holes in international protection or the need for new law. It does however reveal certain characteristics as regards the approach to the legal framework, which include extreme selectivity of application, a spreading ‘exceptionalism,’ distorted ‘purposive’ legal interpretations, excessive secrecy, arbitrariness and a lack of accountability. Evolving international reactions, including judicial reactions, have been and will continue to be critical to the ultimate impact of the ‘war on terror’ on international standards. The study questions the long term implications of the ‘war on terror’ for states and individuals responsible, for third states and for the international rule of law Show less
The manuscript studies NGOs in international law. For that purpose, NGOs were appraised under each of the sources of international law, which, according to authoritative legal doctrine, were listed... Show moreThe manuscript studies NGOs in international law. For that purpose, NGOs were appraised under each of the sources of international law, which, according to authoritative legal doctrine, were listed in article 38 of the Statute of the International Court of Justice. The thesis also addresses the challenges to the legitimacy of States and Intergovernmental Organizations in an era in which electoral democracies constitute the predominant form of government. The research has identified that international law is changing to accommodate new subjects of law that were not conceivable under positivism. The author argues that NGOs are subjects of law to the same extent that Intergovernmental Organizations are, because both are created by subjects of international law (States and individuals) under a typical principal-agent relationship as rational-legal bodies entrusted with certain functions, which, with the attendant duties and responsibilities, were clothed by its constituencies __with the competence required to enable those functions to be effectively discharged__. Show less
This thesis examines the attitude of the Hungarian Constitutional Court (“HCC”) and thePolish Constitutional Tribunal (“PCT”) towards EU law in their case-law. The predominantGerman legal influence... Show moreThis thesis examines the attitude of the Hungarian Constitutional Court (“HCC”) and thePolish Constitutional Tribunal (“PCT”) towards EU law in their case-law. The predominantGerman legal influence in the Central European region is explored from perspectives of legalhistory and culture in order to explain its enduring attraction. In order to provide theframework for the research, the case-law of the German Federal Constitutional Court(“FCC”) on the main principles comprehending the essential core of national sovereignty, thecontents of which are not susceptible to transfer or limitation, are set against theconstitutional requirements of EU law as enunciated by the European Court of Justice(“ECJ”) in its own foundational case-law. Such analysis thus provides the “German model,”by which the FCC has “negotiated” its position vis-à-vis the Union’s fundamental principles(e.g., primacy, direct effect, priority of ECJ rulings) which the ECJ has developed through itsjudgments. In pursuing this research, the decision-making of the two Central European courts isconsidered in the light of the putative influence of the German model. The increasingly activeparticipation of the HCC and particularly the PCT in helping to negotiate the newconstitutional context of the Union, based post-Lisbon on the respect of nationalconstitutional identities in Art. 4(2) TEU, is explored. The multilayered judicial construct ofEurope still remains replete with recognition problems for which the research seeks tosuggest some limited and focused changes. Show less
The book focuses on the legal implications of external mechanisms of migration control for the protection of refugees and irregular migrants. It defends the thesis that when European states... Show moreThe book focuses on the legal implications of external mechanisms of migration control for the protection of refugees and irregular migrants. It defends the thesis that when European states endeavor to control the movement of migrants outside their territories, they remain responsible under international law for upholding the rights of refugees and more general human rights. The book explores how refugee and human rights law responds to a phenomenon whereby states engage in external activity and seek cooperation with other actors in the context of migration control; how EU law governs and constrains the various types of pre-border migration enforcement employed by the Member States of the European Union; and examines the conformity with international law of current and unfolding practices of external migration control. Show less
