Originally presented as the author's Thesis (Ph. D.)--University of Cambridge Faculty of Law. / Description based on print version record. Includes bibliographical references (p. [215]-247) and index.

Originally presented as the author's thesis (Ph.D.)--University of Cambridge Faculty of Law. / Includes bibliographical references (p. [215]-247) and index.

Thesis (Ph.D.)--Aberdeen University, 2009. / Title from web page (viewed on June 26, 2009). Includes bibliographical references.

This thesis seeks to identify the moral wrong of torture, and to trace the relationship between that wrong and the definition of torture in international law. Because understanding a concept's modern manifestation requires an understanding of its history, the thesis begins by tracing the historical trajectory of legal prohibitions of different forms of ill-treatment beginning with the English Bill of Rights in 1689, subsequently articulated in the 1948 Universal Declaration of Human Rights, that 'no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'. This prohibition, almost universally accepted by States, has come to be interpreted as embodying a hierarchy with torture at the apex. The shift towards a hierarchical interpretation of the prohibition of torture and ill-treatment in international law was remarkable, both for its decisiveness and for its surprisingly recent occurrence. The reasons for that shift are examined, before turning to a consideration of the competing accounts of what it is that makes torture wrong. Two predominant accounts of the moral wrong of torture are identified, described here as the 'dignitarian' and the 'defencelessness' accounts. Although most international instruments and judicial decisions on torture implicitly reflect the dignitarian account, the thesis argues that this account is open to challenge on normative grounds. Instead, it argues that the preferable account of the moral wrong of torture is a modified form of the defencelessness account, according to which torture is the deliberate infliction of severe pain or suffering in the context of a profoundly asymmetric power relation. Finally, the thesis turns to a consideration of the definitions of torture in international law. It contends that there are distinct conceptions of torture operating in the criminal paradigm, and in the human rights paradigm, respectively. While both conceptions of torture at present reflect the dignitarian account, the thesis argues that there is scope in the human rights paradigm for a more expansive 'defencelessness' conception of torture to be adopted.

No description available.

The issue of divergence in human rights protection (adjudication) between the law of the European Convention on Human Rights (ECHR) and European Community/Union (EC/EU) law has been in the centre of academic attention for decades. The position that there are instances of divergence and there is a risk of divergence between the two legal orders has gained authority in academic discourse despite the fact that its premises were subject to challenges on numerous occasions. The claim that human rights protection in EC law is divergent from that under the ECHR appears to suffer from certain shortcomings. First, it is not clear how the divergence claim addresses the question of incommensurability that unavoidably emerges in a comparison of judgments originating from different jurisdictions. Second, the divergence claim has largely eluded to address the quality of flexibility possessed by ECHR and EC human rights law. Both legal orders operate mechanisms of flexibility that enable a treatment of differing human rights solutions other than rejection. In reaction to these problems the present thesis advances the arguments of flexibility and similarity. The flexibility argument holds that the issue of divergence is largely neutralised by the ability of ECHR law (and to a lesser extent of EC law) to react to the problem of divergence flexibly. This entails that the human rights solutions of Community courts could often be accommodated within the flexible framework of ECHR law. The similarity argument provides that the style of human rights protection in ECHR and EC law is similar. The comparison of styles is based on a general system of analysis that aims to avoid the problem of incommensurability. The two arguments are not independent - the success of each argument depends on the availability of the other. The limits of flexibility are found in the requirement of similarity and the impreciseness of the similarity argument is corrected by the potentials inherent in the flexibility argument. On this basis, the relationship between ECHR and EC law could be described as a flexible status of non-divergence.

Journalists reporting from conflict zones are increasingly at risk of injury or death. Not only are they at risk of becoming a casualty in the crossfire, they are now often directly targeted and killed because of their profession. The legal framework protecting journalists in conflict zones consists predominantly of International Humanitarian Law, supplemented by International Human Rights Law and International Criminal Law. The main body of law providing protection to journalists consists of the Geneva Conventions and their additional Protocols, which are now several decades old. Since their drafting, there have been significant changes in the way we conduct wars, as well as in the way journalists operate and report from conflict zones. This raises the question whether this legal framework is still suitable for the protection of journalists in contemporary conflicts. This thesis confirms that the legal framework contains, at least in theory, a significant number of provisions that continue to provide protection for journalists in conflict zones. What is clear, however, is that there are significant differences in the protection awarded to journalists based on the type of journalist, for example whether they are embedded or function independently in conflict zones, the type of conflict they are covering and even their nationality. The result is a rather complicated legal framework that is not always easy to apply in practice. It has been argued by the International Committee of the Red Cross, a view also reflected in most of the academic literature, that the protection offered by the current legal framework is adequate, but that the enforcement of it is lacking. This is considered the predominant reason why journalists reporting on conflicts currently face such significant risks to their safety. While this is clearly part of the problem, this thesis challenges the notion that the legal framework provides all necessary protection and that only through stronger enforcement can protection be increased. In particular, it suggests that this ignores the effect that clarity and the comprehensiveness of the framework can have on enforcement. Having explored the gaps and limitations in the existing law, this thesis sets out the case for introducing a dedicated convention for the protection of journalists in conflict zones in order to clarify and streamline the current legal framework.

This thesis is the first major study of the UK Supreme Court’s use of jurisprudence from foreign domestic courts in human rights cases. It contributes to the debate on judicial comparitivism by asking when, how and why the Supreme Court uses foreign jurisprudence, as well as whether the Court should be making greater use of it. The research findings are drawn from quantitative and qualitative analysis of judgments handed down by the Supreme Court during its first four years (2009-2013). These are supported by evidence obtained through interviews with ten Justices of the Supreme Court, one Lord Justice of Appeal and the eight Supreme Court Judicial Assistants. In the absence of legislative guidance, the use of foreign jurisprudence is neither consistent nor systematic. Different Justices use foreign jurisprudence to different degrees and for different reasons. The main use of foreign jurisprudence is as a heuristic device: it provides the Justices with a different analytical lens through which to reflect on their own reasoning about a problem. Some Justices also use foreign jurisprudence when interpreting a common legislative scheme and to support their conclusions. As a result, the Justices use foreign jurisprudence differently according to the audience to whom their reasons are addressed. Thus foreign jurisprudence can assist the Supreme Court to enter into dialogue with the Strasbourg Court. However, this thesis does not support theories of transjudicial dialogue with other domestic courts; the evidence does not indicate that the Supreme Court considers itself to be part of global conversation. Further, the use of foreign jurisprudence is limited by practical barriers including, but not restricted to, time pressures, the availability of comparative resources and the greater use of plurality style judgments. These barriers are worth addressing if the Supreme Court is to fully utilise the heuristic value of foreign jurisprudence.

Thesis (LL. M)--University of Toronto, 2005. / Includes bibliographical references.

Thesis (LLM)-University of Pretoria, 2006. / Summary in English and Afrikaans. Includes bibliographical references. Mode of access: World Wide Web.