This thesis examines the application of the doctrine of frustration under the English private law of contracts to situations of capture of merchant ships for ransom by pirates operating according to the model which has developed in recent years off the coast of Somalia. The examination is centred on the question whether and how contracts of affreightment (or carriage of goods by sea) (including time and voyage charters as well as bills of lading) which may have been concluded by a captured ship would be terminated in the event of capture pursuant to the doctrine. The thesis analyses the wording of standard carriage contract forms and clauses, as well as the provisions of relevant international conventions and statutes, which could deal with the standing of contracts following a capture. The outcome of the research is that standard contract and clauses often leave the question of the fate of the contract in the event of capture untouched with the result that the doctrine of frustration may apply by default. The contract will only be terminated, however, if an elaborately long detention of the vessel is anticipated, or the prospects of recovery, either against payment of a ransom or through forceful repossession, are very weak. The thesis equally considers the application of the concept of self-induced frustration by taking several examples of actions or default by one of the parties to the contract of carriage which may have led to or exacerbated the capture scenario. The main findings are that it will usually be difficult to establish self-induced frustration in the event of capture. An analysis is also made of the application of the concepts of actual and constructive total loss under English marine insurance law to a ship that has been captured by pirates according to the same model of operation. The consequences of termination of the contract are not discussed in this thesis.

The Nubian Sandstone Aquifer System is one of the world’s largest transboundary fossil aquifers and stretches underneath the territories of the North African States of Egypt, Libya, Sudan and Chad. All four States have strong Islamic cultural backgrounds, and Egypt, Libya and Sudan have enshrined Shari'a as a fundamental source of law in their constitutions. This thesis assesses the extent to which the 2008 Draft Articles on the Law of Transboundary Aquifers, proposed to the UN General Assembly by the International Law Commission, are compatible with general principles of Islamic water law. Both the 2008 Draft Articles as the current culmination of international groundwater law and Islamic law suffer from certain shortcomings. Whilst the former lacks the same binding authority Islamic law enjoys and to date does not elaborate the potential issue of water commercialisation in water scarce regions, the latter lacks the transboundary perspective in relation to groundwater. This highlights the impact Islamic law could have on the on-going negotiations between the NSAS Aquifer States, whereby specific Islamic provisions could provide stepping-stones towards an innovative utilisation framework for the NSAS that adequately addresses the need for precaution and intergenerational equity, which, inter alia, could instil new impetus for a refined set of Draft Articles. An alternative future is likely to evolve along the lines of separate agreements and a more fragmented corpus of international law rather than a coherent body of codified international law on transboundary fossil aquifers, which would run counter to the International Law Commission’s objective.

The present thesis evaluates the international legal standing of the right to a remedy and reparation contained in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Human Rights and Serious Violations of International Humanitarian Law. It focuses on two aspects of the right to a remedy and reparation. First, it examines the application of state responsibility principles to the relationship between states and individuals when human rights and international humanitarian law violations are committed. Secondly, it analyses the convergence of norms of state liability in different branches of international law: human rights law, the law on diplomatic protection, international humanitarian law, and international criminal law. It advances the proposition that state responsibility for reparation in favour of individuals has crystallised in international law. The thesis is divided in four chapters. The first is an introductory chapter. It defines the scope and objective of the study, and identifies and maps the existing scholarly positions on the right to a remedy and reparation for individuals under international law. Chapter 2 describes the law of state responsibility for injuries to aliens and its relationship to the right to reparation in human rights law. Chapter 3 explores the right to reparation for international humanitarian law violations. As a conclusion, Chapter 4 assesses whether the Principles and Guidelines reflect the standards of international law previously analysed. It looks at whether principles of state responsibility can apply to the relationship between individuals and states – a basic presumption of this instrument that was also one of the main sources of contention during the drafting and adoption process at the UN. It concludes that individuals can invoke state responsibility directly under contemporary international law through an actionable right to reparation for serious violations of human rights and international humanitarian law that constitute international wrongful acts.

This project explores the issue of selectivity within contemporary international politics, particularly in relation to the implementation of the United Nations’ Responsibility to Protect principle, from a postcolonial perspective. It argues that in order to fully understand the selective implementation of policy in contemporary contexts, it is necessary to examine the historical origins of the United Nations and to highlight the institutionalisation of postcolonial privilege in international political organisations. Through the use of archival data, it shows that the United Nations is an institution that has been committed to the perpetuation of colonial power structures through the development of new forms of government and structures of control, relying on problematic discourses of civilisation and progress that legitimate a global power structure that has its roots in colonialism. It begins with the provision of an alternative historical narrative that highlights the significance of colonialism in the founding of the United Nations and that seeks to undermine the discourse of equality that is frequently attributed to the organisation. It then moves on to explore more concrete examples of the structures of the United Nations that have allowed for the continuation of colonial power relations before examining these ideas in relation to the contemporary politics of intervention, particularly focusing on the role of the Security Council as the locus of postcolonial and neocolonial power.

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No description available.

Health is an important matter for both individuals and states. Since the adoption of the Universal Declaration of Human Rights 1948 (UDHR), health has been categorised as a human right. In the years following this Declaration, many international treaties and national constitutions have emphasised this issue;for example, article 12 of the International Convention of Economic, Social and Cultural rights 1966 (ICESCR). However, as this thesis notes, the language in which this right is cast varies. This, it is argued, is problematic for any attempt to vindicate the right and ensure its justiciability. Accordingly an alternative definition is explored and clarified in what follows. In first chapter, the focus is on arguing that, the current phrases such as ‘right to health’, ‘right to medical care’, ‘the human right to highest attainable standards of health’ and ‘right to health protection’ are vague and weak and may prevent a clear understanding of the expectations that people may legitimately have. The main outcome is to describe a workable and more precise right which can also be legally enforced; that is, the right to health care. In the second chapter, the legal sources of the right to health care in international law are explored. In particular, it is argued that there are obligations on states to implement this right and, as members of the international community and the main subject of international law, to take all necessary steps to put it into practice by translating these obligations into domestic law, thus ensuring that health care is treated as a human right In addition, this chapter also describes the general principles of human rights, such as non-discrimination, participation and equity, that ought to be taken into account by the state`s authorities when they implement the right in question. The following two chapters are devoted to examining the status of the right to health care in the United Kingdom and Libya as models of developed and developing countries.According to health Act No 106 of 1973, health care appear to be simply human right in theory in both national law and international commitments however in practice the government as well as the judiciary did not take it seriously. As result, the case laws have not considered such right as human right nor a legal right for Libyans. In the UK, the reluctance of the government to treat health care as legal right has not stopped judges to evaluate health decisions makers and adjudicate whether such decisions were proper with the case in question. Thus, the chance for UK citizens to review the decisions of the health authorities is wider under the judicial review in terms of legal right rather than human right. In the conclusion, it is proposed that the main problem in according the right to health care the status of a human right is not in fact related to any inability of the judiciary to deal with social and economic rights, nor is it reliant on disagreement about the legal nature of the right and whether it should be categorised as a negative or a positive right, but relates rather to the meaning of the right and what it should include. It is further proposed that the right defended in this thesis – the right to health care – can solve this problem by clarifying the nature and content of the right. The UK experience shows that when such clarity exists, the debate about whether or not the right exists or is justiciable becomes irrelevant. Equally, the state can ignore the international distinctions between types of right and invest health care with the status of a justiciable right in domestic law. While the interim Libyan Government refers to a right to health care in its new constitution, it is clear that political will is necessary to translate it into reality. The Libyan state has much to learn from the healthcare and legal structures of the United Kingdom; particularly it can learn from examination of the mechanisms by which the UK, and other European nations and organisations, have effectively avoided the debate about whether or not the right to health care can be categorised as a human right by developing jurisprudence that renders it clear and justiciable in and of itself.

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.

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.

This dissertation examines the ongoing problem of business actors violating human rights and the regulatory attempts to deal with the problem at the international level. In particular, it considers the work of the UN Secretary- General’s Special Representative on Business Human Rights, John Ruggie and the ‘Protect, Respect and Remedy’ framework as elaborated in the 2011 UN Guiding Principles on Business and Human Rights. It also critically analyses the UN Global Compact, the OECD Guidelines on Multinational Enterprises as well as developments in the European Union in this area. Each of these regulatory mechanisms demonstrates elements of new governance, hybrid or third way models of regulation such as voluntarism, wide participation through multistakeholder structures and subsidiarity, all of which are useful soft law techniques that contribute to a culture of human rights or human rights norm internalisation. Nevertheless, they fall down in failing to provide a normative regulatory framework which would address human rights abuses by business actors which remain unresponsive to soft law models of regulation. Specifically, there is a lack of redress for the victims of human rights abuses by business actors and the current regulatory models do not offer a deterrent to or punishment of such abuses. This dissertation argues that the international community must thus re-conceptualise the business and human rights problem and move towards a mandatory international legal paradigm. New governance models have emerged from a changing international legal paradigm and they represent a move away from State-centric regulation towards the complementary co-existence of hard and soft rules in one domain. While many of the new governance techniques offer useful means of internalising a human rights culture within the business community and thus helping to prevent human rights abuses, nevertheless, the lack of normative rules means that no binding redress mechanisms or remedies are available. A true new governance approach allows both normative and non-normative standards to co-exist. Given that the voluntary business and human rights initiatives alone have failed to address the problem adequately, a new international normative approach is necessary. This thesis posits that re-conceptualising business actors as human rights dutyholders does not require a major paradigm shift. International law has always recognised business actors as subjects of international law, or alternatively, participants at minimum, and there is no good reason why they cannot be subject to human rights obligations. This thesis advocates the application of a horizontal approach to human rights which encompasses human rights violations by business actors. At present, a conservative, positivist and State-centric perspective of international law prevails, which prioritises the maintenance of State sovereignty over the rights of individuals not to be abused by business actors. The law is correct as of October 2011.