States that interact in the international arena claim authority within their area of jurisdiction; they claim a right to rule and to govern the practical rationality of their subjects. When states are regularly obeyed and subjects acknowledge their authority claim, they have a de facto authority that enables them to control the behaviour of their subjects. The capacity that a political entity has to successfully exercise de facto authority in order to control the behaviour of agents is a valuable asset that is the object of negotiation at the international level. The role of international law is that of harmonizing the exercise of authority of multiple independent political entities in order to enable international cooperation. Authority, however, is not a commodity, but a normative power which is subject to standards of political legitimacy. The international order is an authority-specification system that aims to regulate the future exercise of political power of domestic political entities. The international order must not only preserve the moral significance of collective choices by protecting the right of self-determination of domestic societies: it must also enable societies to interact under conditions that allow international agreements to have a normative weight. An international order is only legitimate if choices about foreign policies can be normatively transfonnative. According to this, consent among international actors must be given under conditions that attribute control over the proceeding to international actors. International relations should be conducted under background conditions of political fairness that enable international actors to have an adequate chance to influence political outcomes. International procedures of negotiation and law-enactment have an independent moral significance and they must justify the limits they aim to impose on domestic sovereignty.

This thesis aims to provide an investigation into how revolutionary transformation aimed to affect the international legal order itself, rather than what the international order might have to say about a revolution. This study also hopes to illuminate the potential limits that the legal form offers to revolutionary praxis. Revolutionary praxis is taken to constitute action taken in pursuit of the social aspirations first born in the modern era alongside the expansion of the capitalist mode of production that envisaged a world free of the exploitation of man by man and the relentless pursuit of profit. This thesis takes as a central concern the deep connection between the form of law and capitalism, which implies that law as it is currently recognised would not survive the demise of capitalism, and that therefore revolutionary legal praxis would have as its ultimate aim the overthrowing of the current system of international legal relations. Such practice would simultaneously aim to reveal the law as complicit in and constitutive of capitalist oppression, thereby disenchanting the liberal legalist aspirations of the progressively inclined members of the profession. In order to examine this basic thesis, Soviet and Third World relationships to international law are considered. The Soviet relationship was explicitly couched as revolutionary praxis, although it did not see law as the prime location of such activity. The Third World also aimed at radically overhauling international relations, but did so with a far greater investment in the form of law as a vehicle for this aim. The thesis concludes that although the prime reason for the failure of both Soviet and Third World's international legal engagement could be considered in some sense as 'force of arms', that this was entwined with and supported by the 'force of law'. The law's internal logic proved inimical to revolutionary praxis, which offers a substantial caution to any attempt to 'use' international law to pursue anti-capitalist activity.

This thesis examines whether the practice of treaty interpretation of two specialised courts: the European Court of Human Rights (ECtHR) and World Trade Organisation (WTO), often perceived as 'self contained' regimes, could lead to fragmentation of international law. In this purpose the ICJ's practice on treaty interpretation will be taken as the comparator, as the ICJ has mostly contributed to the development and clarification of the rules and principles of international law , The two underlying assumptions followed in this study are: first that the general methodology of treaty interpretation formulated by the 1969 Vienna Convention on the Law of the Treaties (VCLT) in Articles 31, 32 and 33 provides a unifying framework for analysing' the problem of fragmentation due to the interpretative activity of specialised courts and tribunals. And second, that it is necessary to investigate the extent to which the international courts or tribunals are using the precedent created by other international courts and tribunals. ,Since the 1969 VCLT is considered to provide the unifying framework for analysing the 'fragmentation' issue, the thesis examines in detail cases interpreting treaties at the ICJ, ECtHR and GATT/ WTO, prior to, and after the VCLT's adoption. This examination aims to discover whether significant divergences in treaty interpretation exist between these courts. The general argument developed in this thesis is that while the specialised international courts (WTO and ECtHR) deviate sometimes from their own previous interpretative practice, and they do so on the basis of the interpretative rules provided by the VCLT, there is evidence that the ,treaty interpretation practice these two specialised bodies develop in similar patterns to those used by the ICJ on the same matter. Thus, seen in the light of the ECtHR and WTO (GATT) practice on treaty interpretation, both the VCLT's general rules of interpretation and the ICJ's interpretative practice could.constitute an anti fragmentation tool.

No description available.

This thesis explains how Sir Hersch Lauterpacht constructed his international legal theory in the universalisation process of the European law of nations. Introduction presents the general background of the universalisation process of the European law of nations. Chapter 1 discusses the situationality of Lauterpacht, which affected his life as an international lawyer, namely his Jewish background, the influence of Kelsen and the English tradition of international law. Lauterpacht's normative conception of the international community in the inter-war period is explicated in Chapter 2. hi Chapter 3,1 examine how Lauterpacht dealt with legal problems in the outlawry of war from the inter-war period to the end of the Second World War. Chapter 4 holds Lauterpacht's attempts to reconstruct the international community after World War E. Being opposed to political realism, Lauterpacht employed the Grotian Tradition in order to prove the historical value of his idealism. He moulded the function of states into the framework of his normative conception of the international community as civitas maxima with regard to recognition, collective security and the international protection of human rights. I demonstrate how Lauterpacht contributed to the work of the International Law Commission in Chapter 5 from 1952 to 1954. Chapter 6 examined the problems of the responsibility of international judges, namely their neutrality, legal reasoning, and the compatibility of’ automatic' reservation with the ICJ Statute. The conclusion is an appreciation of legalism within the framework of the universalisation of international law in the era of decolonisation.

Although contemporary international law demands the full respect of human rights, recent history continues to furnish frequent examples of man's inhumanity to his fellow man. While international law obliges respect for state sovereignty, the principle of nonintervention and non-use of force; states and the international community have sometimes responded to serious violations of human rights with the use of force, invoking the doctrine of humanitarian intervention. It is the purpose of this thesis, therefore, to examine the legality of 'humanitarian intervention', which is defined here as 'the threat or use oj armed Jorce by a state or group oj states, or an international organization without the consent oj the target state, primarily to end gross violations oj internationally recognized human rights '. To establish that there exists a right of humanitarian intervention under the UN Charter and contemporary international law it is necessary to demonstrate the validity of certain assumptions. Firstly, that such a right does not run foul of Article 2 (4) of the Charter (which establishes a broad prohibition of the use of force, subject to two exceptions: Art. 51, self defence and Art 42, actions authorized by UN Security Council), but is compatible with the clear provisions of the Article. Secondly, Article 2 (4) does not preclude unilateral actions when the collective security regime adopted by the UN seems ineffective. Thirdly, the right of humanitarian intervention can be covered by the provisions of Chapter VII of the UN Charter, particularly through an expansive interpretation of Article 39. And finally, according to state practice, especially postCharter state practice, humanitarian intervention emerges as a new and separate right under customary international law. In fact, all these assumptions can be brought altogether under one general assumption: that the prohibition of the use of force as embodied in the UN Charter is not absolute, but allows for exceptions in addition to those explicitly mentioned in its Articles 51 and 42, and that 'humanitarian intervention' constitutes one of such assumed exceptions. This study, in its first five chapters, seeks to verify whether any of these four assumptions is correct. Concluding Chapter six then attempts to sketch out some of the major implications of the analysis undertaken in the preceding five chapters and asks mainly what is to be made of the fact that certain incidents characterized as humanitarian intervention have been tolerated by the international community? Although it is tempting to argue that such tolerance is evidence that the international community has recognized the legality of 'humanitarian intervention', there are considerable arguments to the contrary. The question continues to arise therefore: what is to be made of this apparent tolerance? The chapter then focuses on whether a compromise solution to the problem of humanitarian intervention can be reached. In particular, it inquires whether it is possible and/or desirable to attempt to reconcile the conflicting norms of non-use of force (order) and protection of human rights Gustice)?

The International Criminal Court's (ICC) provisions on sexualised violence are praised as progressive. However, they exclude forced marriage in times of armed conflict, interpreting it as a form of sexual slavery. Furthermore, the ICC rape definition can be interpreted as regressive and awkward. Puzzled by these contradictions, this thesis analyses the process of defining war rape and forced marriage. It focuses on the key actors, their influences, their understandings of war rape and forced marriage, and on how they shaped the definition process. The thesis argues that state and non-state actors drove the ICC negotiations of the two crimes. Their understanding of war rape and forced marriage was influenced by international, national and personal normative structures. Key actors shaped the definition process through research and policy analyses, producing reports and proposals, lobbing, and through serving on state delegations. The thesis stresses that International Law is made by women and men, not by abstract entities. It draws attention to (dis)continuities in international law-making, highlighting developments from a state-centric towards a more inclusive process. Moreover, the priority on international over national and personal normative structures is challenged. Appreciating how the actors in the ICC negotiations reached their understanding of war rape and forced marriage is crucial to understand their positions that shaped the starting point for reflection on the effectiveness of these methods. The aim and potential contribution of this thesis is to deepen the understanding of the ICC negotiations of war rape and forced marriage. By analysing forced marriage in this context, it aims to raise awareness of the crime and hence to contribute towards a better understanding of it. The thesis also highlights relevant factors that need considering when criminalising sexualised war violence under international law.

The absence of a powerful uniform legal authority, to enforce international law and international agreements, has placed reciprocity in a pivotal position in inter-State relations and the extent to which States rely on reciprocity. This thesis examines the significance of reciprocity and the extent to which reciprocity manifests itself in international law, more specifically is this manifestation a foundation of international law or whether international law creates reciprocity. The present work argues how reciprocity in international law is a multifaceted concept. On the one side it is a principal tool incentivising States away from wrongful acts, and to abide by their obligations; alternatively it is a tool for establishing the right to a reciprocal response. Thus the study sets out to explore how international law shapes the international community’s interactions and how, in turn, these interactions shape international law. Considering the important role that the rule of law plays in the context of international law, the thesis aims to provide an in-depth analysis of the rule of law particularly in its relationship with international law. This analysis will provide a useful discussion on the interactions between the rule of law and reciprocity. The United Nations was established to enhance co-operation amongst the international community with the goal of maintaining international peace and security. This thesis will explore the role of reciprocity in international law on enhancing international commitment and international co-operation. The significance of this lies in reciprocal and ‘remedial’ options in international law that maintain States’ commitment to international obligations which in turn develops friendly relations and international co-operation. This thesis will aim to contribute to scholarly works to bridge the existing gap in interdisciplinary studies exploring the connection between reciprocity, co-operation and the rule of law in the realm of international law.

Traditionally, customary international law is defined as comprising state practice and opinio juris. However, there is a current trend in legal argument by Third World Approaches to International Law (TWAIL) that challenges these state practices arguably dominated by Western ideologies. Based on these challenges, the purpose of this research is not to discard these trends; rather it interrogates the basic principle of international law that sees only state practice and opinio juris as constituting customary international law. This research adds a novel perspective to the on-going debate by investigating the role of the practices and opinions of non-state actors as a counter-hegemonic tool for equal participation, self-determination and emancipation of the Third World peoples who are arguably the victims of Western domination. This thesis explores the above arguments through Nigerian example. It demonstrates the tension between the Western state model and indigenous systems in Nigeria. Such conflict necessitates an ‘inclusive system’ that involves the participation of state and non-state actors in the development of customary international law.

This thesis analyses the law of neutrality in contemporary international law. The first chapter considers the relationship between the law of neutrality and the law on the use of force. After an examination of the effect of the law on the use of force on the status of neutrality, it considers, and rejects, the view that neutrality has become an optional legal status. Having concluded that this argument does not accurately describe the way in which neutrality is invoked in contemporary international law, the second chapter proceeds to consider the thresholds for the application and termination of neutrality. Having focused on the status of neutrality, the thesis then turns to examine the rights and duties that attach to neutral status. Rather than an approach that suggests that neutrality consists of a series of principles rather than concrete rules, the analysis of Chapter 3 suggests that States continue to invoke the substantive rights and duties of neutrality; many of those rights and duties, however, are not entirely clear. Chapter 4 proceeds to consider when neutral duties are displaced or modified when the UN Security Council decides on measures under Chapter VII of the UN Charter. While it was originally thought that the UN Charter had abolished comprehensively the ability of States to remain neutral, the failure of the UN Charter provisions on collective security to work as intended have led to a greater role for neutrality than envisaged by the founders of the UN Charter. Finally, Chapter 5 turns to an examination of the impact of the law on the use of force on the exercise of belligerent rights against neutrals at sea, in the context of the law of contraband, blockade, and war zones