This Thesis begins by examining the general role that relevant domestic laws (of the capital-importing and capital-exporting countries) play in the determination of contested jurisdictional and... Show moreThis Thesis begins by examining the general role that relevant domestic laws (of the capital-importing and capital-exporting countries) play in the determination of contested jurisdictional and substantive issues in investment treaty arbitrations. Subsequently, in two separate chapters, the Thesis delineates the legal bases for the application and the specific function of the municipal laws of the recipient state in settling two paramount issues of jurisdiction ratione materiae in investment treaty arbitrations, namely the matters concerning the legality of the investment as well as the existence of ‘property rights’ underlying the ‘investment’. Having pinpointed the vast relevance of the internal laws of the host state in deciding upon these jurisdictional thresholds, the Thesis goes on to submit that this extensive role of the host state law in the above-mentioned matters coupled with other circumstances and developments in the international law of investment (in particular, the ever-increasing role of the courts of the host state in the resolution of investment treaty arbitration disputes) tend to partially revive the long-dormant theory of ‘localisation’ which had once been substantially affected in a negative way by the inception and the introduction of bilateral investment treaties. Show less
This dissertation is inspired by the question how national authorities can be motivated to advance the fight against impunity by investigating and prosecuting those responsible for mass atrocities... Show moreThis dissertation is inspired by the question how national authorities can be motivated to advance the fight against impunity by investigating and prosecuting those responsible for mass atrocities through their domestic justice systems. Whereas international scholarship has often sought to answer such questions by looking at international criminal courts, this study proposes instead to turn our gaze towards the Inter-American Court of Human Rights.Since the days of the Cold War, the Inter-American human rights system has been an important ally for victims and civil society groups pushing their governments to recognize and investigate serious and systemic violations of human rights and bring the perpetrators to justice. It has thus been involved in the fight against impunity for decades.This dissertation examines both the legal doctrines developed by the Inter-American Court of Human Rights to further the fight against impunity and the practical contributions of those doctrines to domestic accountability processes in Latin America. It argues that the Inter-American system has made important contributions to several aspects of domestic accountability processes. However, in order to understand these contributions, we have to step outside the compliance framework often employed in legal scholarship to the study of international courts. Show less
The incursion of unmanned aircraft systems (UAS) is radically shaping the future of international civil aviation. This technological innovation is creating disruptions in almost all areas of people... Show moreThe incursion of unmanned aircraft systems (UAS) is radically shaping the future of international civil aviation. This technological innovation is creating disruptions in almost all areas of people’s activities. Will unmanned aircraft (UA) ever perform international commercial flights carrying passengers, freight and mail routinely? Will UAS enable new markets and spur economic growth and job creation worldwide? What is happening right now? To what should we be paying attention? What things may influence the future of unmanned commercial aviation? What are the legal challenges? This research aims to explore the current legal and regulatory frameworks from the angle of how they may facilitate the routine and cross-border operations of UAS. It specifically analyses the legal and regulatory challenges that civil UAS poses when used in cross-border operations, by looking into: The legal regimes of airspace;The notion of aircraft;The concept of international air navigation in relation to international air transport; and,The regulatory regime of safety.In his endeavour, the author has also resorted to the rules of treaty interpretation, as laid down in the Vienna Convention on the Law of Treaties, to provide legal coherence and pragmatism in interpreting and applying international aviation rules to UAS. Show less
The dissertation compares the institutional forms of the five United Nations criminal tribunals and their oversight bodies to assess the strengths and weaknesses of these forms in terms of the... Show moreThe dissertation compares the institutional forms of the five United Nations criminal tribunals and their oversight bodies to assess the strengths and weaknesses of these forms in terms of the governance of the tribunals and the protections for their independent functioning. Show less
In the early days of European integration, capital movements were not completely liberalised as a result of the international scepticism regarding their contributory effect to financial instability... Show moreIn the early days of European integration, capital movements were not completely liberalised as a result of the international scepticism regarding their contributory effect to financial instability. However, with the entry into force of the Maastricht Treaty and the introduction of the EMU, it was decided that the EU would follow the model of unrestricted capital liberalisation in order to facilitate financial integration. This is particularly evident in the privatisations and golden shares case law, where the Court of Justice has adopted a broad interpretation of ‘capital restrictions’ under Article 63 TFEU and has treated forms of public owner ship and special shareholding of public authorities in privatised under takings as measures of economic protectionism inherently incompatible with the Internal Market. In this context, this thesis attempts to address the risks of a very broad interpretation of ‘capital restrictions’ by identifying the legal tools available under the existing legal framework and the possible modifications in the judicial interpretation of the free movement provisions that will ensure respect for the division of competences between the EU and the Member States in the fields of corporate governance and property ownership and will allow sufficient room for reconciling economic integration with societal values. Show less
This is a study about the roles that investment tribunals accord to domestic courts in the process of arbitrating disputes between States and foreign investors. It investigates the approaches... Show moreThis is a study about the roles that investment tribunals accord to domestic courts in the process of arbitrating disputes between States and foreign investors. It investigates the approaches taken and attitudes held towards domestic courts in the jurisprudence of arbitral tribunals – not only with a view to making sense of this ever-growing jurisprudence, but with the intent to developing a coherent theory on how domestic courts are perceived by international adjudicators. The argument advanced in this study is that these roles can essentially be conceptualized in three ways. First, as partners, in the sense that domestic courts can assist arbitral tribunals in the determination of certain points of fact, as well as of points of applicable domestic law. Second, as suspects, in the sense that their conduct may itself be injurious to the investor and its investment, and as such become the object of scrutiny by arbitral tribunals. And third, as competitors, in the sense that domestic courts, by providing an avenue for redressing injuries suffered by the investor at the hands of a host State’s authorities, can compete with arbitral tribunals as potential fora for resolving investment disputes. Show less
For the European Union, the rule of law is a multifaceted notion of ‘primordial importance’. It is both a foundational value (Article 2 TEU) and a guiding principle for the Union’s external action... Show moreFor the European Union, the rule of law is a multifaceted notion of ‘primordial importance’. It is both a foundational value (Article 2 TEU) and a guiding principle for the Union’s external action in general (Article 21(1) TEU). The concept plays a central role within the EU and in its external policy. However, what is meant by the term ‘rule of law’ in the EU’s external policy? The thesis tackles the largely unexplored question of the EU’s conceptualisation of the rule of law in its external relations, with a particular focus on development cooperation and enlargement. Although the EU’s commitment to the rule of law is strong and often repeated, the relevant concept remains nebulous. On the basis of a detailed analysis of two key EU external policy areas, the main argument advanced is that the Union has adopted a mostly ‘institutional’ approach to the concept by focussing largely on judicial reform. By testing the relevant practice against the background of the constitutional traditions of the Member States and legal theory, the thesis attests to the significance of developing a more comprehensive approach to the rule of law in EU external relations. Show less
The expression ‘Hard power’ - which is borrowed from the study of international relations – is here defined as the use of (especially military) force in armed conflict or law enforcement, or of... Show moreThe expression ‘Hard power’ - which is borrowed from the study of international relations – is here defined as the use of (especially military) force in armed conflict or law enforcement, or of economic sanctions. The object of this study is to determine whether the European Convention on Human Rights (ECHR) imposes undue restrictions on the freedom of action of contracting States when they have to resort to ‘hard power’. Taking the procedural perspective of a respondent Party in the European Court of Human Rights, it examines a variety of ‘defences’ that may be invoked. It identifies ‘defences’ that have the potential to be successful and the parameters for their use. It is shown that the ECHR leaves States sufficient latitude to pursue their legitimate policy objectives, provided that they act within the limits of international law. This study is relevant to classical warfare but also to modern expressions of ‘hard power’ such as international action to counter terrorism and piracy, peace enforcing and peacekeeping, hybrid warfare and cyber-attacks. Show less
Chapter 1 of the study includes introduction to small satellites activities, it explains and explores what are small satellites, what applications such satellites support, and introduces important... Show moreChapter 1 of the study includes introduction to small satellites activities, it explains and explores what are small satellites, what applications such satellites support, and introduces important terminology. Chapter 2 summarises and analyses the applicability of the existing treaty law to small satellites operations, as well as recent discussions and developments in international bodies such as UN COPUOS and the ITU with respect to international regulation of small satellites activities. Chapter 3 includes a deep legal analysis of State responsibility for non-governmental small satellites activities. It refers to Article VI of the Outer Space Treaty as well to basic concepts as “nationality” in general international law. It analyses case studies which illustrates the legal challenges relating to the application of Article VI in the context of small satellites. Chapter 4 focuses on analysing the applicability of the Liability Convention in relation to small satellites, especially with respect to “fault liability” in outer space. Chapter 5 addresses the legal concept of registration of space objects in the space treaties, and “jurisdiction and control”. It analyses the problematic legal relations between State responsibility, the liability of the launching State and the ability of the latter to exercise jurisdiction and control as the State of registry, in the case of non-governmental small satellites. Chapter 6 summarises the findings of the study and includes analogies to cases where justification to treat certain small scale activities in a special manner was found, referring to the de minimis doctrine. It further includes recommendations and a concrete solution to deal with the legal difficulties which were identified, namely, a draft Optional Protocol to the Outer Space Treaty, aimed to supplement the treaty and internationally regulate non-governmental small satellites activities in more detail. Show less
In 2016, the European Union adopted the Directive on damages actions, which seeks to ensure full compensation for victims who have suffered harm caused by antitrust infringement. With regard to... Show moreIn 2016, the European Union adopted the Directive on damages actions, which seeks to ensure full compensation for victims who have suffered harm caused by antitrust infringement. With regard to mass harm situations, the Directive does not include provisions on collective actions, which may have significant impact on the achievement of full compensation. Instead, the non-binding Recommendation on collective redress was adopted, which has brought hardly any development in antitrust collective litigation. The aim of this dissertation has been to assist in the development of an appropriate approach of collective redress for better achievement of full compensation. Therefore, two private antitrust enforcement models were compared: the deterrence-based in the US and the compensation-oriented in the EU. It was found that collective redress actions would contribute to achieving full compensation only if US style deterrence-based measures were allowed in the EU. However, even if the best possible collective redress mechanism was introduced, the impact on full compensation would be limited, as the achievement of this objective requires fulfilling very high standards. Nevertheless, collective actions should not be denied, because they allow vulnerable victims to defend their rights in courts, as due to the low value harm, individual litigation becomes financially irrational. Show less
This dissertation provides a detailed analysis of the practical and urgent issue concerning the 1998 Rome Statute of the International Criminal Court as evidence of customary international law. The... Show moreThis dissertation provides a detailed analysis of the practical and urgent issue concerning the 1998 Rome Statute of the International Criminal Court as evidence of customary international law. The dissertation is composed of seven chapters, including the introduction and conclusions. Chapter 2 sets out a flexible formula of the two-element identification approach, focusing more on opinio juris, and clarifies the term ‘declaratory’ that defines the relationship between treaty and custom. Based on the methodology and the terms illustrated in chapter 2, chapters 3-6 address key issues of war crimes, crimes against humanity, indirect co-perpetration and personal immunity. This dissertation concludes that provisions of the Rome Statute were partly declaratory of custom when adopted in 1998, and that they are also partly declaratory of custom at the present time. This dissertation will hopefully provide a perspective to understand part of the corpus of customary law applicable in the field of international criminal law which could be of value to legal practitioners of States. Show less
The research examines publically known investor-state cases, supplemented by views of leading commentators, to identify evidentiary principles dealing with burden of proof, standard of proof,... Show moreThe research examines publically known investor-state cases, supplemented by views of leading commentators, to identify evidentiary principles dealing with burden of proof, standard of proof, presumptions and inferences. In this research, I conclude that investor-state tribunals have indeed recognized and applied evidentiary principles on burden of proof, standard of proof, presumptions and inferences. These principles do not always flow from the generally accepted view on arbitral discretion. Rather, these principles have been generally recognized under the rubric of general principles of law. I conclude that the failure to meet the evidentiary principle can have consequences, although the precise consequence varies based on the principle. For example, the failure to meet some of the principles (e.g., burden of proof) can have very severe consequences (e.g., annulment of an ICSID award) but for other principles like whether or not a tribunal should draw an inference would depend on its assessment of the evidence and, therefore, as a general matter cannot be the subject of an annulment. Show less
Are states allowed to prohibit the importation of products made by children? Can foreign investors claim compensation when their host state raises the minimum wage? And could trade and... Show moreAre states allowed to prohibit the importation of products made by children? Can foreign investors claim compensation when their host state raises the minimum wage? And could trade and investment agreements be used to foster decent work, instead of being mere vehicles for economic liberalization? These questions are at the heart of the debate about the interactions between the international legal regimes for trade, investment and labour. This dissertation examines the ways in which international trade and investment law enables and constrains the ability of states to regulate labour. It looks at the effects on domestic labour law, the legality of trade measures responding to ‘unfair’ conditions in exporting countries, and the challenge of fragmentation between the legal framework of the ILO and labour clauses in trade and investment agreements. In addition to analyzing the interactions between the relevant norms, it explains how linkages between international economic law and labour navigate between two notions: fair competition and fundamental rights. This study is agnostic about which of these objectives ought to shape international law, thus allowing a critical examination of the relevant rules of public international law, as well as legal and economic scholarschip. Show less
Twenty years after the coming into force of the Rome Statute, not much has been written on its impact on the country level, neither is there consensus on the goals of the ICC. This thesis seeks... Show moreTwenty years after the coming into force of the Rome Statute, not much has been written on its impact on the country level, neither is there consensus on the goals of the ICC. This thesis seeks to put forward a framework for assessing the impact of the Rome Statute, by measuring four types of impact: systemic effect on domestic legal systems; transformative effect on peace processes (such as through including the rights of victims); reparative effect for victims; and a demonstration effect on affected populations. The thesis measures these effects mainly in four countries: Afghanistan, Colombia, Libya and Uganda. Sources include (legal) literature, policy papers, news stories and interviews. The thesis concludes that while there is some normative impact of the Rome Statute and the ICC, in the form of systemic and transformative effect, it is undermined by lack of societal impact, mainly due to negative perceptions among affected population (demonstration effect) and lack of impact on victims (reparative effect). The thesis also makes a preliminary conclusion that the impact of the Court may have been the most in the country where it was needed the least (Colombia, which has a fairly robust legal system). Show less
