In the era of globalization many writers (e.g. Hannah Arendt, David Held, Robert Fine) have argued that the ideology of nationalism is being challenged by the growth of cosmopolitan developments, ideas and institutions. This thesis takes off from the evolution of 'cosmopolitan criminal law' out of international law. It argues that implicit in the elaboration and use of the 'crimes against humanity' charge at Nuremberg and at the ad hoc International Criminal Tribunals for Yugoslavia and Rwanda (ICTY and ICTR), is the admission that genocide and ethnic cleansing are the business of the whole of humanity and that perpetrators may no longer hide behind the principle of national sovereignty. I argue that the establishment of the principle of individual criminal responsibility for such crimes is not simply a legal fiction. I further argue that the greatly expanded role for short-term instrumental rationality which prevails in modem society (e.g.Zygmunt Bauman) does not limit social actors to a choice of either complicity in or a stepping out of society. The evidence shows that perpetrators do make choices for which they may be held responsible and are not simply puppets of rational structures. The thesis looks at three responses made by the international community to ethnic cleansing in the former Yugoslavia: the peace at all costs policy, which allowed ethnic cleansing to go unhindered in Bosnia; the bombing policy which failed to stop but reversed some of the effects of ethnic cleansing in Kosovo; and the establishment of the ICTY which is judging some of the perpetrators. I use the trials of Dusko Tadic and of Tihomir Blaskic as case studies to investigate the working of the first international criminal tribunal. I also investigate the trial of Andrei Sawoniuk, held in London in 1999, for his actions during the Holocaust in Belarus, and the libel trial in which David Irving sued Deborah Lipstadt. Using these four cases, I examine the functioning of cosmopolitan criminal trials, the different contexts in which they are held, their use of evidence and law, the extent and limits of the justice they achieve, and their role in the production of authoritative cosmopolitan narratives.
Under pressure : a study of the inclusion of the concept of a defence, specifically duress, in the Rome StatuteMoran, Clare Frances January 2015 (has links)
This thesis examines the way in which the concept of criminal law defences for individuals has been imported to international law and the consequences of doing so. The idea of defending one’s criminal act with a legally defined reason which removes criminal responsibility originates in national law. Self-defence is a good example of the ‘best’ kind of defence to plead: acquittal will result where serious assault, for example, was only committed against an attacker in order to save one’s life. Domestic law places restrictions on the availability of such defences, particularly where serious offences such as murder are concerned and more flexible defences, such as duress, tend to be limited in their application to more serious crimes against the person. For example, self-defence is accepted as a full defence for murder in most jurisdictions, but there is a far greater reluctance to allow duress as a full defence for murder. In some jurisdictions, duress is not even recognised as a defence in the first place. At the international level, the Rome Statute of the International Criminal Court has codified defences, directly importing a number of recognisable defences from domestic legal systems. However, the way in which this has been done is problematic: the Rome Statute was drafted to prosecute genocide, war crimes and crimes against humanity, yet it does not restrict or limit the application of any of the defences for the most serious crimes, as domestic systems tend to do. The first part to this thesis demonstrates the way in which national law has been used as a source of principles for the concept of defences, leading to the conclusion that the defences have been imported in part from domestic law. This part to the argument looks at the influence of domestic law at the international level, acknowledging it as a source of and influence on international law and demonstrates the close connection between both. It then turns to the use of domestic defences before internationalised military tribunals and the International Military Tribunals at Tokyo and Nuremberg, concluding that defences have been available but were inapplicable, given the nature and seriousness of the crimes. The codification of defences in the Rome Statute is then explored, identifying the use of domestic law at the international level. However, this use is considered problematic where the crimes are so serious and the defence of duress is identified as a particularly flexible, and thus undesirable, defence for war crimes and crimes against humanity. The second part builds on this argument by undertaking a comparative study of the defence of duress at the national level to demonstrate the lack of consensus in relation to the concept for even one charge of murder, before exploring the definition and inclusion of duress in the Rome Statute. The thesis concludes by identifying ways in which the structure of defences in the Rome Statute could be improved in order to further the aim of the creation of the International Criminal Court: the avoidance of impunity.
The social and environmental responsibilities of EU multinational corporations in Saudi Arabia : a critique of the Saudi national law and a proposal for a new legislative frameworkAlyazidi, Mohammed S. January 2016 (has links)
This thesis examines the social and environmental responsibilities of EU multinational corporations (MNCs) in Saudi Arabia. It found that such corporations do not have enough social and environmental responsibilities when they operate in Saudi Arabia. It argues that as Saudi Arabia seeks economic growth, the Saudi government should ensure that strict regulations are adopted in order protect the environment and the people. The development needed by Saudi Arabia through foreign investment needs to be subject to environmental and social considerations. Therefore, the thesis argues that the Saudi government should introduce reforms to its company law and corporate governance regulations. Moreover, this thesis introduces a proposal for a new corporate responsibility law in Saudi Arabia.
Freedom of association as a foundation for trade union rights : a comparison of EU and ECHR StandardsTatulashvili, Niko January 2015 (has links)
The title of this thesis is Freedom of Association and Trade Union Rights in Europe, Comparative Analysis of the ECJ and ECtHR Case Law. There are several issues that the thesis will try to shed light on. Firstly, it will identify what level of freedom of association as a trade union right is deemed acceptable at the international and European levels. At the international level the ILO and ESC standards will be looked at, while at the regional level I will research the case law of the two European Courts – CJEU and ECtHR. Secondly, the standards of the CJEU and ECtHR will be compared to each other. This way, we will know which of the two protects trade union rights better and where there might be flaws. Thirdly, after comparing the CJEU and ECtHR standards with each other, they will be compared to the international standards of the ILO and ESC. This way I will check how the regional standards are in concert with the international standards that are respected worldwide. Finally, the prospects of EU accession to the ECHR will be looked at. Here I will investigate whether the accession might affect the protection of trade union freedoms in Europe, and if so, in what way.
The projected Arab Court of Justice : a study to its draft statute and rules, with specific reference to the International Court of Justice and principles of Islamic ShariahThani, Ahmed Abdulla Farhan January 1999 (has links)
The present thesis deals with the projected Arab Court of Justice (ACJ) as a regional court, expected to be created within the League of Arab States system. Chapter one deals mainly with the basic structure of the League of Arab States itself, its membership, its organs, the settlement of disputes, and the reasons that are delaying the creation of the ACJ and the role it will be expected to play in settling inter-Arab disputes. In the second chapter comprehensive information on the function of the judicial power in Islamic Shariah is presented, including the status of judges in Islam, their appointment, qualifications, independence and other issues related to them. Chapter three concentrates on the organisation of the projected ACJ, comparing its draft Statute with the Statute of the International Court of Justice (ICJ) and other regional international courts. The chapter will also show how far the Arab draftsmen have been influenced by principles and rules of Islamic Shariah, especially in matters relating to the qualification of judges. Furthermore, the chapter will discuss other points related to the organisation of the bench such as nomination of candidates, system of election, constituting chambers, appointing ad hoc judges etc. The fourth chapter explains in detail at the level of theory as well as of practice the role of Islamic Shariah as a source to be applied by the projected ACJ. The chapter points to the need to discuss the origins and fundamental conceptions of Islamic Shariah as a law capable to be applied by the projected ACJ. Chapter five continues with a discussion of the jurisdiction of the ACJ, and makes detailed reference to the concepts of jurisdiction ratione personae, ratione materiae and the function of the ACJ to give advisory opinions. The thesis considers whether the Arab drafters have developed the above terms or have simply adopted them as they exist in the Statute of the International Court of Justice. The conclusions summarise the findings of the Thesis, and are accompanied by some critical remarks.
Mandatory obligations under the international counter-terrorism and organised crime conventions to facilitate state cooperation in law enforcementHameed, Usman January 2014 (has links)
The UN-sponsored international conventions on terrorism and organised crime deal with a specific type of criminality which spreads across national frontiers. The suppression of these crimes is possible through state cooperation in extradition and mutual legal assistance. Hence, the object of these conventions is to facilitate law enforcement cooperation. To achieve this aim, the conventions have established certain mandatory obligations in order to ensure harmony among the legal systems of states parties with a view to make them conducive to law enforcement cooperation. Harmony is needed to satisfy certain requirements of extradition and mutual legal assistance proceedings which necessitate similarity in the legal systems of the requesting and requested states. These requirements can be classified into distinct categories of conditions and procedure. Conditions refer to conditions associated with the principle of reciprocity or exchange of comparable favours, upon which the laws and treaties on extradition and mutual legal assistance are based. It demands similar legal prescriptions or equivalent conceptions of justice under the laws of the requesting and requested state with respect to the act concerning which surrender or interrogation is sought. To enable the parties to satisfy conditions, the international conventions impose mandatory obligations to implement their rules concerning jurisdiction, criminalisation and fair treatment. Procedure implies the procedure of applying or executing the enforcement devices of aut dedere aut judicare and confiscation of the proceeds of crime. The application of both these devices necessitates similarity in the laws of the requesting and requested states with respect to procedure of enforcement. Similarity is needed to ensure that a foreign request may not be refused due to the requested state lacking enabling procedural rules or the request not being consistent with its procedural law. To establish similarity, the conventions impose mandatory obligations to implement the mechanisms of aut dedere aut judicare and confiscation of the proceeds of crimes. This thesis critically examines the impact of these obligations on state cooperation in bringing to justice transnational offenders. The central argument of the thesis is that the mandatory obligations under the counter-terrorism and organised crime conventions are required to be implemented in accordance with and, to the extent permissible, under the national law of state parties. Accordingly, when they are translated domestically, they do not achieve a level of harmony, sufficient to facilitate the fulfilment of the requirements of extradition and mutual legal assistance, i.e. ‘double conditions’ and procedural similarity needed to enforce aut dedere aut judicare and confiscation. Resultantly, discretion rests with the requested state to grant or refuse cooperation depending upon its political and diplomatic relations with the requesting state. This contradicts the objective of facilitating law enforcement cooperation in the specific context of borderless or transnational crimes. Following this approach, state cooperation concerning transnational crimes remains as discretionary and as unregulated as cooperation in regard to ordinary crimes. This calls into question the utility of reliance on mandatory obligations as tools to facilitate law enforcement cooperation. As an alternative, some bilateral/regional treaties and domestic laws adopt the strategy of relaxing ‘double conditions’ and simplifying the procedure of applying aut dedere aut judicare and confiscation. This strategy also aims at facilitating law enforcement cooperation; however, it takes the route of regulating the requirements of extradition and mutual legal assistance rather than harmonising national justice systems to make them conducive to their demands. Given that this system carries greater potential for facilitating law enforcement cooperation, this thesis recommends that the makers of the international counter-terrorism and organised crime conventions should substitute or complement the mandatory obligations with it. Significantly, states have, by agreeing not to apply political and fiscal offence exception to extradition and interrogation proceedings involving these crimes, shown their willingness to accept this approach of facilitating law enforcement cooperation in the specific context of transnational crimes.
This research aims to investigate the Saudi Competition Law (2004) and its regulations and rules. It investigates whether the Saudi Competition Law guarantees protection for fair competition. . It looks into the defects in the Saudi Competition Law and its enforcement. The research also explores reforms needed to improve the Saudi Competition Law and how such reforms can be achieved. The study employs two broad approaches to answer the research questions: the black letter and socio-legal models; and two particular methods (as well as analysis of legal material and existing related literature), i.e, interviews, and two case studies in communications and civil aviation sectors. The findings show a conflict between the principles underlying Competition Law and currently implemented government policy. Barriers to entry, public and wholly-owned state companies’ immunity, the government’s privatisation policy, and the government role in the market contradict the general principles of the competition law. There is evidence of monopolistic practices, a lack of neutrality, and insufficient implementation of the law against government-owned companies. There also seems to be jurisdictional conflicts between the Council of Competition Protection (CCP) and authorities with similar functions. Critical assessment of the Saudi Competition Law revealed a number of problems in four areas: anti-competitive agreements, abuse of dominant position, mergers, and enforcement. Examining several cases showed some deficiencies in enforcement. The study suggests some recommendations for policy reform and modernisation of the Law and its regulations. The Shariah Law adopted general rules for regulating competition issues. It prohibits two main practices: monopoly and damage. Since this study is the first to address competition law in the Kingdom of Saudi Arabia, it is hoped that the research findings and outcomes will add to knowledge in this field, enabling greater understanding and leading to better application of the Saudi Competition Law, and thus be of benefit to both law researchers and to practitioners, investors (domestic and foreign), and consumers. This study is hoped to provide a framework for the countries of the Middle East, particularly the Arab countries, which are seeking to move toward more competitive markets, whether they have already adopted or are planning to adopt competition law.
Compliance with the stability and growth pact : an economic analysis of emerging pressures relating to pension provisionDale, Alan T. January 2012 (has links)
The Treaty of Rome assigns overriding importance to price stability in the firm belief that maintaining stable prices on a sustained basis is a crucial pre-condition for increasing economic welfare and the growth potential of an economy. Price stability is given formal expression in the Stability and Growth Pact, which confines the budgetary freedom of Member States within precisely defined parameters. The European Union takes the view that by helping to create a favourable economic environment, sound monetary policy should secure the broad objectives of the Community laid down in Article 3. One of these objectives is the promotion of social justice and protection. The thesis focuses on an aspect of social protection: the provision of old age security. The realisation that current pension schemes in many Member States will not be fiscally sustainable has forced their governments to start the process of legislative reform. The challenge is to design pension systems that do not place too heavy a burden on members of working age, while still offering an adequate level of benefit to retired members. Pension system reform has often proved a particularly difficult and awkward political undertaking. The thesis argues that Member States with ageing populations will find it increasingly difficult to maintain high standards of social provision and still comply with the obligations of the Pact. It is contended that continuing demographic imbalance will be a constant impediment to the required maintenance of budgetary balance. Countries have implemented changes, such as increases in statutory retirement age, and reductions in replacement rate, so as to avoid further increasing the contribution burden borne by the diminishing proportion of workers. The thesis concludes that public pension design modifications, whether parametric, such as raising the retirement age, or systemic, such as the introduction of a funded component, will only alleviate and not solve the problem. The only answer is an increased number of younger workers, and that requires birth-rates to move towards replacement level.
A critical legal analysis of prosecutorial discretion at the International Criminal Court : towards more transparency, accountability, and legitimacyPues, Anni Henriette January 2017 (has links)
The Prosecutor is the gatekeeper at the ICC. Her discretionary decisions determine in which situations the Court will commence an investigation and who will be brought before the Court. The Prosecutor’s focus on Africa has led to severe criticism of alleged anti-African bias and an erosion of the Court's legitimacy. Against this background, this thesis examines the exercise of prosecutorial discretion at the ICC. It identifies the scope for procedural discretionary decisions at the key junctures of the proceedings, covering areas such as how to conduct a preliminary examination, when to commence an investigation, who to prosecute and which charges to bring. The analysis is based on the theoretical understanding that the legality of decisions is crucial, which is why the thesis analyses the legal limitations of the exercise of discretion to clearly determine its boundaries. However, legality alone is not sufficient to serve the aim of safeguarding and enhancing the legitimacy of the Court. It is argued that the Prosecutor is not entirely free, but bound by the main principles and aims represented in the Rome Statute. She must ensure that her decisions demonstrate impartiality, maximize the deterrence effect of the ICC, and respond to victims' interests. To achieve a positive effect on the legitimacy of the Court, it is also required that the Prosecutor deliberates on individual decisions and makes these decisions more transparent. This will provide routes to pragmatic mechanisms of accountability, beyond the limited possibilities in the Rome Statute to hold the Prosecutor formally to account. In this regard, the thesis also analyses the role of the gravity notion, a concept that gained increased prominence in the evolving practice of the Prosecutor, and of the interests of justice, a notion that has not once been used yet. Both are indeterminate concepts that equip the Prosecutor with the necessary flexibility to respond to a variety of very different scenarios that might occur within the jurisdiction of the Court. The thesis demonstrates that the acts of applying these concepts contain a type of interpretative discretion. For the gravity notion, however, the scope is very limited, does not allow any managerial considerations, and must strictly be geared towards consistency. While the interests of justice currently appear redundant, this thesis demonstrates how this concept can gain new importance for the completion of situations, one of the challenges ahead for the Court. Overall, this thesis aims to identify avenues by which the Prosecutor can contribute to turning the Court into a more responsive institution, striking a balance between the preservation of its independence and open interaction with its stakeholders.
The legality of recourse to defensive force in Islamic and international law : with reference to the case in PalestineAmireh, Makram January 2012 (has links)
This thesis is a study of the legality of using force in a defensive way from the perspective of Islamic and International law regarding the Palestinian use of force in the Palestinian–Israeli conflict. This thesis is a doctrinal and applicable study of the jus ad bellum principle of the defensive use of force in Islamic and international law, applying it to the case of Palestine. That is to say, the first part of the thesis is an analysis of the defensive use of force in Islamic and international law from a doctrinal perspective; the second part is a discussion of how to apply these norms to the case of the Palestinian use of force. The objective of the research is to understand the doctrinal concept of the principle of the defensive use of force and the legal stance of the Palestinian defensive use of force in Islamic and international law. The study of both angles of law is significant because they both function together and are relied on at the present time by Palestinian fighters who are concerned with the legality of their resistance. The study concludes that the legal concept of the defensive use of force from the perspective of Islamic and international law is applied to Palestinians living inside Palestine today.
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