In this exercise an attempt has been made to examine the international law relating to territorial waters as it affects Scotland. The restriction of the subject to its application to a relatively small portion of the maritime waters claimed as territorial precludes mention of much which would require notice in a more comprehensive study of territorial waters generally. Reference has necessarily been made to the practice of States in other parts of the globe with the twofold object of ascertaining where possible the law applicable to Scottish territorial waters and of obtaining a proper perspective of that law. The work is divided into two parts. Part I is treated historically to illustrate, from the Scottish standpoint, the development of a. situation which brought about freedom of the seas and the restriction of territorial waters. Part II deals with the modern international law as the essayist conceives it to be.

Extraterritoriality at the ECtHR appears to create a paradox. On the one hand, it is limited in space, time, purpose and remedies, through its state membership, individual application process, the terms of the ECHR, and restricted enforcement and influence on general international policy. On the other, it appears to be an indispensable refuge for individuals who are victim to the most flagrant denials of justice happening on a global scale. The ECtHR finds itself an avenue for redress in historical events of global significance such as the NATO bombing and UN administration of Kosovo, the US-UK occupation in Iraq, extraordinary rendition procedures and the interception of migrant boats at sea. This thesis embraces the paradox of extraterritoriality at the ECtHR. Putting forward a normative framework, the thesis clarifies the nature of extraterritoriality at the ECtHR and investigates the extent to which the ECtHR adopts a single normative frame. Existing theories fail to capture the nature of extraterritoriality in the ECtHR’s operation. This thesis offers a global constitutionalist approach to deduce a model for extraterritoriality. Using a normative global constitutionalist frame, in particular democratic accountability and the rule of law, the thesis examines the extent to which the ECtHR adopts such an approach. Translating the requirements of normative global constitutionalism into doctrinal indicators, it examines whether the ECtHR operates within a global constitutionalist frame in extraterritoriality decisions. Alongside this examination, the thesis queries the function and purpose of extraterritoriality and its relationship with other international legal concepts. It questions models that rely on state jurisdiction and attribution to determine their extraterritorial reach, exposing extraterritoriality as performing a separate function. It ultimately unravels the paradox of extraterritoriality through a global constitutionalist explanation.

The right to manifest a religious belief is enshrined in the European Convention on Human Rights and has been under some attack lately in a number of Contracting Party States. In response to increasingly visible religious pluralism, a number of States have created legislation which limits this right in certain instances through the criminalisation of religious manifestations. This thesis considers the representation of women, their right to manifest their religious belief and inclusion in policy by the European Court of Human Rights (ECtHR), employing a doctrinal analysis within a law in context approach. It will therefore include extensive case law analysis of the jurisprudence of the ECtHR and examine the language, content and legal concepts integrated in the areas of religious manifestations and gender equality. It also draws on the quantitative and qualitative research that has been conducted by researchers across Europe who have evidenced that women are disproportionately affected by such bans and documents the experiences and motives of the women affected. Using intersectional feminism, feminist judging and gender mainstreaming as a form of critical scholarship it concludes that the bans are based on outsider experiences and views and proposes a more inclusive framework for qualifying the right to manifest a religious belief.

Opposition to an international organisation with legal powers to protect human rights describes both the legal process of non-compliance with an organisation and political attacks on the organisations legitimacy. Opposition is caused by an organisation’s legal structure, in particular the powers that organisations have to encourage compliance with international human rights law. This study examines anti-imperialist opposition – which is opposition broadly predicated on the notion that human rights law and its enforcement are a continuation of colonial-imperialism or a form of neo-imperialism. When analysing opposition from the Third World bloc and other postcolonial states within the UN Commission on Human Rights and treaty bodies, it is possible to discern a distinct form of anti-imperialist opposition. This was in part because of international law’s origins in the colonial-imperial era and the perpetuation of inequalities between different states after decolonisation. But forms of anti-imperialist opposition continued in regional organisations, such as the African Commission on Human and Peoples Rights, created outside of this broader imperialist context. This study concludes that there common elements in the legal structure of human rights organisations which are predicated on an imperialist form domination. This explains the persistence of anti-imperialist opposition which is a major factor affecting the functioning of international human rights organisations.

This thesis critically examines the implementation of international human rights standards through a study of the situation of Europe's Roma majority. The foundations of the human rights standards as they apply to minorities are considered from a theoretical perspective to be deficient. The need to respect the collective aspects of identity as well as the individual dimensions has been recognised by many theorists but has not been translated into human rights norms. The consequences of the individualist emphasis are explored with respect to the rights of citizenship and education. The former suggests that a focus centred only on the individual can legitimise discriminatory treatment in the name of assimilation. When looking at the right to education it is apparent that the denial of minority culture and values in the education process has contributed to the lack of school achievement and educational disillusionment. Promising initiatives form the European Union place a greater emphasis on the need to support rather than diminish minority cultural values. An alternative approach stressing the importance of minority identity is considered by analysing the Hungarian system of minority self-government. The system, still in its infancy, recognises the collective interests of minority groups as well as the individual rights of group members. In conclusion it is argued that the present emphasis on the individual does little to protect the rights of members of marginalised minority groups. This realisation does not necessarily entail the prioritisation of collective over individual rights. Rather, it is argued that collective and individual rights be viewed as supplemental and inter-dependent.

This thesis explores the United Nations’ human rights monitoring mechanism, the Universal Periodic Review (UPR) process. The aim of the UPR process is to peer review states’ human rights records through an interactive dialogue session. One of the core elements of the review process is its claim of universality, which is based on two grounds: first, the universal applicability of the process, and second, the normative claim of universalism that is embedded in the operation of the process. Focusing on the second claim of universalism, I challenge the normative claim of universality of the process using the theories of cultural relativism. I ask whether, and to what extent, member states adopt positions that affiliate with the cultural relativist perspective during the interactive dialogue stage in the UPR process. Guided by the theoretical framework of this investigation, I selected three women’s rights categories as the focus of this investigation: women’s rights to health, women’s rights under private and family law and violence against women. The findings of this investigation reveal that there was evidence of states introducing arguments from a form of cultural relativism to challenge universality of international women’s rights. The foundations of this investigation are laid down in the first three chapters of this thesis, which broadly provide details of the UPR process, define the theoretical framework and justify the research methods adopted for this study. Chapters 4, 5 and 6 of this thesis present, analyse and discuss the findings of this research project. Drawing upon the findings, this thesis provides two main conclusions. First, that the extent to which the universality of human rights is promoted is contingent on the states participating in the review and the human rights issue being discussed. Second, an unchecked challenge of universalism expressed by some states from a form of cultural relativism threatens not only the creditability of the UPR process, but could potentially question the very infrastructure of international human rights norms.

The treatment of non-refugee stateless persons varies greatly across the States of the European Union. Not much is known about it and it is disputed whether, and to what extent, national mechanisms are in line with the corresponding international obligations. In light of the differences observed, this thesis argues that the recognition of stateless status and the related application of a basic set of rights, according to the 1954 Convention relating to the Status of Stateless Persons (the ‘1954 Convention’), are more likely to occur when Member States incorporate specific laws and procedures. In particular, the protection of stateless persons is more effective when Member States rigorously address the issue of identification of statelessness by adopting exact provisions rather than simply modifying existing norms and making marginal changes to immigration laws. Although the 1954 Convention does not explicitly require that a procedure or specific means for determining statelessness be established, it sets forth standards of treatment which can only be put into practice if its beneficiaries have been recognised. Effective protection also necessitates taking measures to remove obstacles of general applicability and publicity of rights and procedures. By analysing the treatment of claims for protection by stateless persons in ten European Union States that have ratified the 1954 Convention, this research contributes to the questions of whether detailed statelessness determination procedures are needed, what their constituent elements should be, how decision-makers apply the definition of ‘stateless person’, and what rights are attached to the grant of lawful status. It highlights shortcomings as well as good models of the national legal frameworks, and makes recommendations for further developments. Against this backdrop, it adds insights to the wider debate on how human rights treaties should be implemented by demonstrating that their formal incorporation into the national frameworks is desirable to ensure certainty and effectiveness of the law.

No description available.

The central argument of this thesis is that law and asylum are fundamentally incompatible. In contrast to the standard claim that the coming of refugee law has been key in guaranteeing a space of protection for refugees, I argue that law has been instrumental in eliminating spaces of protection, not just from one’s persecutors, but also from the biopolitical grasp of sovereign power. This thesis is presented in three parts. First I examine the genealogy of asylum. By uncovering certain fundamental aspects of its construction, namely its concern with defining space rather than people, and its role as a space of resistance or otherness to sovereign law, I demonstrate that asylum has historically been antagonistic to law, and vice versa. In the second part, I look briefly at the development of international refugee law, and in doing so present a counter-history to the idea that this process was about restricting the caprice of states in relation to the admission of refugees and was grounded in humanitarian concern. Instead, I argue that refugee law was constructed precisely to ensure the effective management of large movements of forced migrants. Finally, in the third part of the thesis, I treat the US Sanctuary Movement (1981-1991) as a concentrated example of what happens when the old tradition of asylum confronts modern refugee law. Here many of the themes of parts one and two are revisited, but with the added twist that now the ideology of refugee law serves to hegemonise and undermine the practice of asylum/sanctuary from within.

The 1951 Refugee Convention protects the basic right of an individual to be treated as an independent social agent of justification. It embodies the moral and legal framework through which any person can assert a claim to have their basic human rights respected, regardless of where they are located in the world. Partialist and impartialist theories of statehood are bridged through the recognition that states are obligated by universal morality and international law to accept Convention refugees into their territory. Any discretion states may have to reject Convention refugees consists entirely in the exclusion clauses, and cannot be grounded in any other claim. The discretion to exclude is exceptional and circumscribed. Article 1F of the Refugee Convention excludes serious international and common criminals from protection. While the clauses of the Refugee Convention are said to capture an autonomous international meaning, the reality has been marked by vastly divergent interpretations both within and among states. This lack of universality has allowed an expansionist trend to germinate, with some states seizing the opportunity left behind by normative and legal heterogeneity to initiate broad-based security measures in relation to refugees. This thesis maintains that the current lack of universality stems from the absence of an overarching theoretical foundation to exclusion. Three doctrinal debates relating to the exclusion of individuals as ‘serious non-political criminals’ under Article 1F(b) are closely examined: ‘serious’ crime; ‘non-political’ crime; and, standard of proof and evidentiary issues. Points of intersection between refugee law and other fields of law, including extradition and counter-terrorism, are given careful attention. A refugee law understanding of these doctrinal concepts is developed, directed by an integrative theory of ‘human security’ that highlights the need to preserve individualised assessment in refugee determination. The centrifugal force of ‘human security’ reveals that state security interests and refugee interests are not ineluctably polar. Rather, both are grounded in the protection of core human rights. This thesis is premised on that dialectical possibility.