This dissertation evaluates the applicability and effectiveness of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as a settlement mechanism for addressing the South China Sea (SCS) dispute, the most complex and challenging ocean-related regional conflict in East Asia. This dissertation answers these broad questions: Does UNCLOS create a constitution for the ocean? Is UNCLOS successful in preventing or managing conflicts pertaining to marine resources? Hoes does the SCS dispute settlement bridge the gap of International Relations (IR) and International Law (IL)? Since 1980s, the regime concept came to be used as one vehicle to cross the disciplinary divide between IL and IR. This dissertation seeks to foster dialogue between political scientists and international lawyers by viewing UNCLOS as an international regime and exploring its internal coherence and its external relationship with other international regimes and institutions in this region. I argue that there can be little doubt about the centrality of UNCLOS in the legal framework for ocean management, albeit it may be perceived to have certain shortcomings. The most pervasive threats to the SCS stability and obstacles to solve the dispute are caused by the lack of political will to implement the dispute settlement mechanism of UNCLOS. This paper proposes a pragmatic settlement regime of five dimensions to solve the SCS dispute and accelerate ocean governance in this region.

This is a thesis about the applicability of the jus in bello to armed conflicts involving non-state armed groups. The thesis focuses on the thresholds of applicability. These are the definitions of actors and situations that activate the applicability of the jus in bello. The aim is to illuminate and critique the regulatory rationales behind the different definitions of actors and situations in the different thresholds. The evolution of the thresholds is reviewed chronologically. Accordingly, the enquiry ranges from the 19th century doctrines of recognition of belligerency and insurgency, through common article 3 and Additional Protocols I and II, to the law developed by the ICTY and included in the Rome Statute for the International Criminal Court. While the thresholds constitute the centre of the enquiry, their meaning and function are further elucidated by the analysis of the process of their assessment, as well as the extent of the substantive legal regime they activate. The central question of the thesis is whether there has been a gradual shift from a status-based rationale to one focused on the humanitarian protection of individuals, in the evolution of the thresholds of applicability. A status-based rationale fits with a system of horizontal regulation of state-like collective entities and allows considerations and perceptions of the ascription of status through legal regulation to determine the threshold of applicability. A humanitarian-protection rationale is more related to a system of vertical regulation irrespective of status and links the applicability of the law to the individual and her protection. The argument proposed is that such a gradual shift is indeed visible, if tempered by the continuous role that considerations of status have in conflict situations and the still largely decentralised system of assessment of the applicability of the law.

No description available.

Of the maritime boundaries yet to be delimited between Canada and the United States, the Beaufort Sea might be the more pressing one, considering its strategic location in a rapidly developing Arctic region and its vast economic potential. In accordance with the Law of the Sea Convention (UNCLOS), maritime boundaries are to be delimited by agreement on the basis of international law as referred to in Article 38 of the Statute of the International Court of Justice, in order to reach an equitable solution. When an agreement cannot be reached, parties can resort to third-party arbitration. While jurisprudence has determined that international law does not mandate a particular method of delimitation, it requires the consideration of equitable principles, also called special circumstances or factors. The notion of equity is therefore the foundation of boundary determination. But, what is equity and how is it applied? This thesis examines the various forms of equity, their origins in legal philosophy and domestic law and how they have been incorporated in international law. The main focus, however, is to analyse the differences between how international tribunals or courts have interpreted and applied equity in boundary determination and how States have applied it in negotiated agreements. While tribunals have tended to consider equitable principles as equivalent to geographical proportionality, States have considered those principles more in keeping with the notion of distributive justice and, more and more, are taking a globalised approach to boundary determination. On the basis of this analysis, this thesis evaluates the potential outcome of a third-party arbitration of the Beaufort Sea boundary dispute between Canada and the United States as well as the options for settlement negotiations between the Parties. In the Beaufort Sea area where hydrocarbon development is intrinsically linked not only to the development of the local population but also to the entire Arctic region, be it on issues related to the environment, navigation or security, the thesis concludes that a third-party adjudication would not serve the interests of the States. As delimiting boundaries nowadays is only one aspect of the management of oceans related issues, interests are best served when delimitation is understood as part of this global approach.

International criminal courts do not operate to the exclusion of national legal orders, but co-exist with them. The present thesis provides an in-depth analysis of the above relationship. By examining the concepts of primacy and complementarity on the basis of which the ad hoc international criminal Tribunals and the permanent International Criminal Court seize jurisdiction, the foundations of the interface are explored. As effectiveness is a key concept to international criminal justice, the relationship between international criminal courts and national legal systems is tested, by examining the co-operation regimes envisaged in the Statutes of both the Tribunals and the ICC, as well as the problems that arise in practice. Moreover, the way the UN Security Council affects State interplay with international criminal justice institutions is crucial for a holistic understanding of the limitations of the interaction. The final part of the thesis focuses on national incorporation efforts and provides a detailed analysis of implementing legislation of a number of key States with a view to discerning some common approaches and highlighting problem areas. The present thesis argues that despite the different constitutional bases of the Tribunals and the ICC, similar questions of interface with national courts arise and the challenges presented could be better tackled by aiming for a "functional or workable interaction". Overall, the originality of this thesis lies in its analytical approach. By scrutinising a number of crucial aspects of the relationship between international criminal courts and national legal orders an overview of the research question posed is achieved. Moreover, the examination of the legal principles and their practical application is complemented by a comprehensive discussion of national implementing legislation which has not previously been attempted in a similar manner. [Files associated with the accompanying CD-ROM (print version) are available on request to subject librarian.]

This thesis reviews in detail the powers, practice and effectiveness of the United Nations in the maintenance of international peace and security since its inception over forty years ago. The work not only contains an examination of the constitutional powers of the the two United Nations' organs responsible for this area - the Security Council and the General Assembly - and of how these powers have been developed in practice, but also of the significant political factors operating to limit the ambit and effectiveness of those powers. To this end Part 1 of the work examines the Security Council, Part 2 the General Assembly, whilst Part 3 contains a study of the peacekeeping function of the United Nations. Each Part is roughly divided into an analysis in terms of political factors, constitutional considerations and finally effectiveness. Peacekeeping is examined separately because it raises a host of particular problems - both constitutional and political – which would be difficult to encompass in the other two Parts. Generally, each chapter contains a conclusion at which point the various threads are drawn together not only to produce a summary but also to provide guidance as to the future use and development of the powers possessed by the United Nations in this field.

The aim of this thesis is to analyse the conceptual foundations of the doctrine of humanitarian intervention and scrutinise the pertinent practice within the identified lego-philosophical framework. The present study is organised into three major sections. The first section contains the theory of humanitarian intervention and it has been subdivided into four chapters which represent the main legal theories. The pursued analysis is, thus, manifold. It proceeds with a theoretical appraisement of natural law, positivism, realism, and critical legal studies by presenting and evaluating their main dispositions, inadequacies and interrelations. Additionally, those trends in the practice of humanitarian intervention which coincide with the identified theoretical tenets are also appraised. The thrust of the pursued analysis is, we hope, to rationalise the contradiction in legal doctrine which stems from the different philosophical stances adopted by legal theorists. These contradictions could be surmised in the antithetical poles of peace/justice; human rights/sovereignty. The next section could be introduced as the praxis of humanitarian intervention and contains two chapters. Having identified the arguments and contradictions, two articles of the United Nations Charter which attempt to control the notion of humanitarian intervention by legal means are analysed; that is, Article 2(4) on the non-use of force and Article 51 on self-defence. The diversified effectuation of humanitarian intervention renders the identified contradictions and opposing theoretical trends more evident. However, our aim is not merely to deconstruct the legal and philosophical milieu relating to humanitarian intervention but also to present a new framework for analysis. Consequently, the last two chapters contain our phronesis. They deal with the assumption of human dignity which transgresses the compartmentalisation of legal doctrine and its unreflective actualisation in the praxis of humanitarian intervention. At this point, the aim of the present research is to substitute a sterile lego-philosophical dogmatism and to submit under scrutiny a vision whereby the critical parameters of any humanitarian action are evaluated and accounted for. This, we hope, consists of the innovative aspect of this research. The existing lego-philosophical approach to humanitarian intervention – negative or positive - suffers from an unreflective automation. The negative approach submits any relevant action to strictly defined criteria compliance with which is conditio sine qua non for legality. On the other hand, the positive approach encounters greater difficulties. It weighs any humanitarian action according to certain criteria but disguises its value choices within the legal context. The fear of incommensuration in legal argument invites indecisive and restrained attitudes. In contradistinction, our approach entails an explicit aim of attaining human dignity which redirects our reflective nature towards distinguishing and deconcretising the manifold aspects which humanitarian actions contain. Instead of monolithic evaluations, one should see in any humanitarian action the values which are at stake and what should be done in order to ameliorate the situation.

The purpose of this study is an inquiry into the present state of customary international law on the use of armed force by individual States. It deals with the historical evolution of the law towards the current rule of the prohibition of the use of force, the content of this prohibition and the purported exceptions to it that are invoked in the practice of States as justifications of lawful resort to force. The present author does not deal with the use of force under the authority of competent organs of the United Nations and regional organisations, as well as questions of individual criminal responsibility for resort to armed force. The present author has adopted an analytical and empirical approach towards the phenomenon of the use of armed force by States. The study is based on an examination of the practice of individual States, both within and outside the framework of United Nations organs. More specifically it concentrates on the practice of States that perpetrated the use of force, the States that were the targets of this force and the reactions of third States (in the sense of not those directly involved) to instances of use of force. Moreover, the present author considers certain resolutions adopted by the Security Council and the General Assembly as part of the practice of States and evidence of opinio juris of this practice. By this it is meant that the adoption (or not) of resolutions, especially in the Security Council, is not insulated from statements by individual members of these U. N. organs. Hence, in the case of the Security Council the lack of condemnation is not automatically considered as approval of the action that is the object of debate at the Council, beyond and apart from the attitude of individual Members. At the same time the adoption of a resolution is treated as a projection of the position advocated by individual States, while account is taken of the voting pattern and dissent or reservations expressed upon adoption. The study of State practice is compared with the ruling of the International Court of Justice in the Nicaragua Case (Merits) (the issues of use of armed force dealt with by the Court) with the aim of proving that the restrictive interpretation of the law on the use of force upheld by the Court corresponds to the actual practice of States as a component of general customary law. The position of the law of the use of force rests on a twofold basis. First, the rule of the prohibition of resort to armed force that constitutes the foundation and the starting point of the legal regulation of unilateral resort to armed force, and secondly, the purported exceptions to the rule. It is undoubtedly the case that the legal force of the rule of non-use of armed violence is not diminished. The numerous resorts to armed force by individual States have been justified either on the basis of restrictive interpretation of the content of the prohibition itself or of the purported exceptions to it. In the subsequent sections it is shown that State practice does not admit a restrictive interpretation of components of the rule and is unanimous only with regard to one of the purported exceptions to it : the right of defensive action. With regard to other exceptions, there exists extreme controversy as to their existence and scope. The content of the prohibition of the use of force, the scope of the "universally admitted" exception of defensive action, and, finally, the controversial exceptions to the rule of non-use of force constitute the three main thematic issues that are dealt with in this study. Hence the structure of the present thesis reflects this contingency. The present study considers the evolution of the law on the regulation of the use of force as marked by continuity from the period of the League of Nations to the present, and it is divided in three parts. Part One deals with the rule of the prohibition of the use of armed force by individual States. It considers the historical evolution of the rule and focuses greatly on the important developments in the practice of States during the period of the League of Nations that culminated in the total prohibition of armed force as a result of the Conclusion of the Pact of Paris (1928) and the establishment of the United Nations Organisation (Chapter 1). The remainder of Part One deals with the content of the prohibition of the threat or use of force by focusing, mainly, on the practice of States in the period 1945 - 19913. The issues that are dealt with are related to the phenomena of indirect use of force by way of armed bands (Chapter 2); armed reprisals (Chapter 3); the concepts of threat of force (Chapter 4); economic coercion (Chapter 5); anti-colonial armed struggles in relation to the rule of non-use of force (Chapter 6); and territorial integrity and political independence as the object of forcible action. Part Two examines the historical evolution (Chapter 8) and the content of the right of self-defence (Chapters 9& 10), as the only universally accepted ground for lawful unilateral resort to armed force. Chapter 9 deals with the content of individual defensive action and Chapter 10 concerns the concept of collective self-defence. Finally, in Part Three the present author considers justifications for lawful resort to armed force that are surrounded by controversy: Namely, the use of force by States for the protection of the lives and property of nationals or under the doctrine of "humanitarian intervention" (Chapter 11) and the concept of military intervention on the basis of the consent of the State on whose territory military action is taking place (Chapter 12). By way of last word it must be pointed out that in this study the term "intervention" is considered as wider than the concept of "armed force" - the latter is included in the former but not vice-versa. A study of intervention necessarily includes, in this writer's view, instances of nonforcible State activity detailed consideration of which was beyond the scope of this thesis.

Thesis (M. A.), Memorial University of Newfoundland, 1998. / Bibliography: leaves 102-113.

Thesis (Ph.D.)--University of Wollongong, 2010. / Typescript. Includes bibliographical references: p. 292-328.