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This book describes the general forces which have shaped the law over the centuries, beginning in the Middle Ages and continuing to the present day. The law of neutrality is the law regulating the coexistence of war and peace. Its history is the story of the competition between opposing right, those of belligerents against those of neutrals. Belligerents claim a right to take whatever steps are necessary to bring their foes to heel including, when necessary, interrupting their trade with neutral persons. Neutrals claim a right to carry on doing 'business as usual' with the warring sides, with whom they are at peace. The most striking feature of the treaty network of the seventeenth and eighteenth centuries was its liberality towards neutrals. The single most important sign of lenient treatment of neutral commerce concerned the carriage of enemy property at sea. The eighteenth century was particularly rich in armed-neutrality initiatives. France was frequently their sponsor, with varying degrees of overtness, even though it was belligerent itself. The Convention on Neutrality in Naval War was more complex than its land-warfare counterpart. It combined a number of prohibitions upon belligerents with affirmative policing duties on neutrals. Neutrality considerations featured in several of the other Hague Conventions as well. The code-of-conduct advocates naturally favoured continuing the pre-war programme of codifying the law of neutrality, to bring it up to date in the light of the harsh experiences of the recent conflict.
This book is a full-length study of the rights of indigenous peoples in international law, focusing in particular on instruments of human rights. The primary reference point is contemporary law, though the book also examines the history of indigenous peoples through the lens of historical legal discourses. The work critically assesses the politics of definition and analyses contested definitions and descriptions of indigenous groups. Most of the chapters are devoted to detailed examination of existing and emerging human rights texts at global and regional levels. Among the instruments considered in the book are the International Covenants on Human Rights, the UN Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination, the African Charter on Human and People's Rights, and the ILO Conventions on Indigenous and Tribal Peoples.
This book examines some of the challenges which globalisation throws up for the international community from a legal perspective. It focuses on two aspects of the treatment of foreign investment by states: the general rules concerning access, operation and expropriation of foreign investment and the lex specialis of international taxation. The book describes the implications for developing states which have in the past resisted the international law rules relating to expropriation of foreign investment and sought instead the development of a new international economic order including inter alia the establishment of binding rules addressing the behaviour of transnational corporations. It traces the development of new legal concepts and techniques in different contexts and locations: in bilateral relations, in multilateral conventions and negotiations and in regional economic integration systems. The wide scope of the Uruguay Round and the linking of the separate agreements in the WTO 'package' serve to illustrate how the battle between old and new ideological strands can be played out simultaneously in different ways in different locations and with different results; it serves to highlight how ideology drives the transfer and leakage of legal concepts and principles from one field to another. Many developing states have signed up to the WTO Agreements and have embraced the free trade orthodoxy in other areas. But recent and future developments in relation to the treatment and taxation of foreign investment will constitute in some areas an assault on long-held ideological constructs hitherto shielded from or accommodated within other free trade developments.
This book provides a critical analysis of the definitions of war crimes and crimes against humanity as construed in the Rome Statute of the International Criminal Court. Each crime is discussed from its origins in treaty or customary international law, through developments as a result of the jurisprudence of modern ad hoc or internationalised tribunals, to modifications introduced by the Rome Statute and the Elements of Crimes. The influence of human rights law upon the definition of crimes is discussed, as is the possible impact of State reservations on the underlying treaties that form the basis for the conduct covered by the offences in the Rome Statute. Examples are also given from recent conflicts to aid a ‘real-life’ discussion of the type of conduct over which the International Criminal Court may take jurisdiction.
It has been accepted since antiquity that some restraint should be observed during armed conflict. This book examines the apparent dichotomy and introduces any study of the law of armed conflict by considering the nature and legality of war. The purpose of what is known as the law of armed conflict or, more commonly, the law of war is to reduce the horrors inherent therein to the greatest extent possible, bearing in mind the political purpose for which the war is fought, namely to achieve one's policies over one's enemies. The discussion on the history and sources of the law of armed conflict pays most attention to warfare on land because that is the region for which most agreements have been drawn up, although attention has been accorded to both aerial and naval warfare where it has been considered necessary. Traditionally, international law was divided into the law of war and the law of peace, with no intermediate stage between. Although diplomatic relations between belligerents are normally severed once a conflict has commenced, there remain a number of issues, not all of which are concerned with their inter-belligerent relations, which require them to remain in contact. War crimes are violations of the and customs of the law of armed conflict and are punishable whether committed by combatants or civilians, including the nationals of neutral states. The book also talks about the rights and duties of the Occupying Power, civil defence, branches of international law and prisoners of war.
While espionage among nations is a long-standing practice, the emergence of the internet has challenged the traditional legal framework and has resulted in the intensification of intelligence activities. In fact, espionage was subject to indirect regulation, which applied where a spy was (often at their own risk) trespassing on foreign territory or sent behind enemy lines. With the emergence of cyber-espionage, however, agents may collect intelligence from within their own jurisdictions, with a great deal of secrecy and less risk. This monograph argues that – save for some exceptions – this activity has been subject to normative avoidance. It means that it is neither prohibited – as spying does not result in an internationally wrongful act – nor authorised, permitted or subject to a right – as States are free to prevent and fight foreign cyber-espionage activities. However, States are aware of such status of law, and are not interested in any further regulation. This situation did not emerge by happenstance but rather via the purposeful silence of States – leaving them free to pursue cyber-espionage themselves at the same time as they adopt measures to prevent falling victim to it. To proceed, this monograph resorts to a first-class sample of State practice and analyses several rules and treaties: territorial sovereignty, collective security and international humanitarian law (i.e. the rules applicable between belligerent and neutral Powers, as well as between belligerents themselves), the law of diplomatic relations, human rights law, international law and European economic law. It also demonstrates that no specific customary law has emerged in the field.