Thesis (M.B.A.)--Naval Postgraduate School, June 2003. / "MBA professional report"--Cover. Thesis advisor(s): Nancy C. Roberts, John E. Mutty. Includes bibliographical references (p. 49-52). Also available online.

International events since the landmark Pinochet case, increased human rights advocacy, efforts at a culture of accountability, as well as the recent pro-democratic up-rising in the Arab states sustain impetus for the consideration of Head of state immunity in international law. A naturalist view of international law is that there can be no Head of state immunity for violations of human rights. This popular view proceeds from a theoretical misunderstanding of the positivist concept of immunities resulting in its practical misapplication. However, this naturalist view must be contextualised within the subtleties of international rule-making. It is to this end that the inquiry into Head of state immunity as a concept of customary international law, emergent trends and the formation of a new rule of custom in this regard is necessitated. Thus, this thesis will inquire into the applicability, or otherwise, of Head of state immunity before certain fora, including national courts, international courts, and internationalised courts with view to discerning emergent trends in the practice of Head of state immunity. Thematic in this thesis, is the argument that a provision in the constitutive instrument establishing the jurisdiction of a court which makes irrelevant the fact of official capacity as Head of state, without more, cannot remove the immunities of Heads of states under customary international law. This thesis will undertake its analysis from the perspective of the nature of the constitutive instrument establishing an international court and the extent to which states are bound by the instrument. This thesis will conclude this inquiry by considering the extent to which the trends elicited in the substantive part of the work have changed customary international law and the extent to which there can be said to be a new international law on Head of state immunity.

This thesis argues that the distinction between UN peacekeeping operations and UN enforcement actions must be preserved so that the efficacy of peacekeeping will not be imperilled. It is submitted that the primary strength of peacekeeping has long been that it was not in the nature of enforcement. Whereas an enforcement operation is forceful, partial and imposed on a state against its wishes, peacekeeping adhered to three “fundamental principles,” whereby it used force only in self-defence, it remained impartial and it was only to be called into existence where the host-state(s) supported the idea. Because of the non-intrusive nature of peacekeeping operations, the political impediments preventing the establishment of enforcement action by the Security Council did not arise. The thesis begins by outlining the nature of peacekeeping, with a focus on the Cold War period. It considers how peacekeeping has been defined and how it differs from enforcement. It outlines how, despite the attribution by the Security Council of certain enforcement characteristics to the ONUC operation in the Congo, the two endeavours remained distinct during the Cold War. The thesis then sets out the law relating to peacekeeping and enforcement, including the impact that the characterisation may have on the Security Council’s power to act and on the rights and obligations of the peacekeepers. Next, it turns to the UN’s practice, during a brief period from 1992 to 1995, of bestowing peacekeeping operations with certain enforcement-type powers and considers whether any of the peacekeeping operations during this period were authorised under Article 42 of the Charter. It concludes that such operations were generally not successful and were decidedly rejected by the international community at the time. The balance of the thesis considers the current peacekeeping practice of the Security Council whereby the lines between peacekeeping and enforcement are, once again, being blurred. These peacekeeping operations—described herein as “New Millennium peacekeeping”—are established under Chapter VII and frequently authorised to use “all necessary means” to achieve their mandates. The operations have taken place with the consent of the host-state (at least where there was a government in existence to give such consent). In order to assess whether these operations represent an exercise by the Security Council of its enforcement power under Article 42, the thesis will consider not only the Security Council mandates for such operations, but also the actual functioning of the operations. In the process, the long list of problems associated with such operations will be considered. I will conclude that, despite the relatively entrenched nature of the Security Council’s practice as regards New Millennium peacekeeping, due to these problems, it is only a matter of time before the Security Council, and the international community more generally, decides to return to an approach whereby peacekeeping and enforcement operations are kept distinct.

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This study seeks to provide a comprehensive analysis of the advisory role of the International Court of Justice in light of its jurisprudence and overall contribution over a period of more than 55 years. The last comprehensive study of the ICJ's advisory jurisdiction was published in 1973. Since then, there have been 11 more advisory opinions, some covering areas of great contemporary importance such as decolonisation, legal issues arising from the possession and possible use of nuclear weapons and international legal aspects of the Israeli Palestinian conflict. This thesis attempts to update previous work on the subject and also to reexamine the function of the advisory jurisdiction in light of these more recent opinions. The thesis highlights the "organic connection" between UN organs and the Court and the Court's contribution as one of the UN's principal organs to the Organisation. The basic argument of this thesis is that the advisory function should be understood as a two-sided process involving the interplay between UN organs and the ICJ. The request for and the giving of an advisory opinion is a collective coordinated process, involving more than one organ or part of the Organisation. Consequently, each must be mindful of the need for some degree of restraint. The collective commitment to achieving the purposes of the Charter should be the ultimate goal for all organs. The study concludes that the Court's role as a participant in the UN's work is circumscribed by its duty to act judicially. In practice, the Court has succeeded in establishing a balance between its role as a principal organ of the UN and its position as a judicial institution with a duty to administer justice impartially. Lastly, the study emphasises that since the San Francisco Conference the advisory function has proved to be a successful instrument for providing authoritative legal opinions that aid the UN in carrying out its functions. The advisory opinions rendered by the Court and by its predecessor, the PCU, have actually gone beyond the expectations of the founders of these Courts, particularly in terms of their contribution to International Law. Yet, as this thesis suggests, the advisory function can still be improved.

This thesis examines compliance with international human rights law in United Nations (UN) operations. It focuses on the provision of emergency humanitarian assistance, and on the assumption of administrative powers by the UN both de Jure (international administrations of territory) and de facto (refugee camps). It is argued that in these operations the UN has the functional capacity to have a direct impact on individuals and on the enjoyment of their fundamental rights. In part using case studies (the provision of humanitarian assistance to Afghanistan, the UN administrations in Kosovo and East Timor, and refugee camps in Kenya), it is shown that acts in violation of human rights have indeed been committed in the course of these operations. Although the UN is not itself a party to human rights treaties, various arguments are made to justify the applicability of international human rights law to the UN, and to its specialised programmes and agencies. Mechanisms - political, administrative, judicial and semi-judicial - for ensuring the accountability of the UN for violations of human rights are examined. However, existing mechanisms are largely inadequate. They neither offer remedies to the victims of the violations, nor impose sanctions on the perpetrators; their ability to modify future institutional conduct is also limited.

This thesis examines the impact of security sector reform in peacebuilding operations on the process of democratisation, with reference to the case of Bosnia-Herzegovina (BiH) between the signing of the peace agreement in November 1995 and the parliamentary elections of November 2000. A hard realist model has been applied in BiH but has not significantly helped democratisation, leaving the nationalist power structure largely untouched because of two factors: the structure of the agreement itself, tom between its separatist and re-integrationist provisions, and the incoherence of the international community with regard to security sector reform in BiH. The Bosnian predicament demonstrates the potential of a hard realist/liberal model of peacebuilding. It is argued here that it is less the nature of the model itself, which combines a hard realist approach to SSR with efforts at democratisation, that determines the success of the democratisation effort than the place of SSR within the overall peacebuilding process, as well as the roles played by third parties and the extent of their commitment in pushing democratisation forward.