Collective identity can be altered by attacking culture’s tangible components (a temple) which are often a manifestation of or a support to their intangible (spiritual practice). That... Show moreCollective identity can be altered by attacking culture’s tangible components (a temple) which are often a manifestation of or a support to their intangible (spiritual practice). That identity can also be altered by attacking culture’s intangible in isolation (prohibition of spiritual practice). The research determines the extent to which international adjudicatory mechanisms have considered the causes, means and consequences of intentionally attacking culture’s tangible and intangible components. The research then brings their separate practice together. Based on treaty law, culture will be placed in a legal mould. Culture can be anthropical or natural, movable or immovable, secular or religious, tangible or intangible, regardless of terminology (cultural property, cultural heritage, intangible or tangible cultural heritage). Culture will then be placed in a judicial mould, in order to consider how natural and legal persons can invoke cultural damage in judicial proceedings. Culture is a legacy-oriented triptych made of local, national and international panels. While each panel makes sense in isolation, they are best understood when viewed together. State responsibility and individual criminal responsibility-based jurisdictions have accepted that attacking culture may be both tangible-centred and heritage-centred in terms of typology of damage. They have further recognised that the victims of such attacks can be natural persons as members of the collective or the collective as the sum of natural persons. But the victims can also be legal persons which may participate in judicial proceedings and seek reparations for harm sustained as a result of damage inflicted to their property (a museum’s building as well as its artefacts). Show less
Under international law, the state is generally only responsible for the conduct of public authorities and not of private actors. But when a state loses effective control over part of its territory... Show moreUnder international law, the state is generally only responsible for the conduct of public authorities and not of private actors. But when a state loses effective control over part of its territory, that loss is often accompanied (or even caused) by an enhanced role for private actors, such as armed groups, secessionist entities, or even informal community institutions. Under the current system, these actors cannot be held directly responsible when they commit, for instance, human rights abuses. At the same time, states are rarely completely absent from the picture: the government may try to reassert control or enlist the help of militias; foreign powers may support rebel groups or prop up separatist regimes.Against this backdrop, the dissertation explores when states can be held responsible in connection with private conduct in such situations, and how any remaining accountability gaps can be narrowed in cases where a state is involved. In doing so, it focuses on three bases of responsibility: violating a duty to prevent and/or redress private conduct; complicity in private conduct; and the transformation of private into public conduct, through its attribution to the state. The analysis delves into the work of the International Law Commission and international jurisprudence, including the hitherto largely underexplored case law of regional human rights courts on these issues. To narrow the accountability gap, the dissertation argues that there should be a general rule prohibiting state complicity in the wrongful conduct of private actors; in the meantime, complicity should in certain limited cases form the basis for attribution. Show less
This thesis examines the legal responsibility for human rights violations that may occur in the context of border control or return operations coordinated by the EU agency Frontex. Imagine,... Show moreThis thesis examines the legal responsibility for human rights violations that may occur in the context of border control or return operations coordinated by the EU agency Frontex. Imagine, for example, that during a border control operation at sea, a vessel forces a boat carrying migrants back to its place of origin, which may be in violation of the rights of persons on that boat. The operation is hosted by State A, coordinated and financed by Frontex, but the vessel in question is from State B. The contributions by State A, B, and by Frontex to the violation vary in nature and degree. But which contribution leads to legal responsibility? The thesis concludes that direct responsibility typically lies with the host state. In addition, participating states who contribute large assets and Frontex will often incur responsibility together with the host state, predominantly on the basis of their obligations to protect or supervise. However, the study also exposes just how difficult it may be for individuals to find a place for bringing complaints against violations of their human rights suffered at the EU’s external borders. This casts doubts on whether the current legal framework offers them an effective remedy. Show less
Individuals whose international (human) rights are violated outside their state of nationality often have very limited means to address such violations. For instance, the foreign nationals detained... Show moreIndividuals whose international (human) rights are violated outside their state of nationality often have very limited means to address such violations. For instance, the foreign nationals detained by the United States in Guantanamo Bay have been unable to improve their situation themselves. Their state of nationality however can protect them through the exercise of diplomatic protection, thereby invoking the international responsibility of the host state for a violation of international law. This mechanism has been subject to debate and criticism in recent years because of its (alleged) state-centred and its discretionary nature. Through an analysis of the nature of diplomatic protection, in particular the legal fiction, the modalities of its exercise and its relation to the general law of state responsibility, and its application in international and national practice the position of diplomatic protection in current international law is defined and the question of whether it is an appropriate mechanism for the protection of individual (human) rights is answered positively. Resort to this mechanisms by states should be encouraged in order to increase protection against violations of individual (human) rights.Individuals whose international (human) rights are violated outside their state of nationality often have very limited means to address such violations. For instance, the foreign nationals detained by the United States in Guantanamo Bay have been unable to improve their situation themselves. Their state of nationality however can protect them through the exercise of diplomatic protection, thereby invoking the international responsibility of the host state for a violation of international law. This mechanism has been subject to debate and criticism in recent years because of its (alleged) state-centred and its discretionary nature. Through an analysis of the nature of diplomatic protection, in particular the legal fiction, the modalities of its exercise and its relation to the general law of state responsibility, and its application in international and national practice the position of diplomatic protection in current international law is defined and the question of whether it is an appropriate mechanism for the protection of individual (human) rights is answered positively. Resort to this mechanisms by states should be encouraged in order to increase protection against violations of individual (human) rights. Show less
