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Description
Since 9/11 a wide range of violent practices including indefinite detention, torture, and targeted killing have been employed by the United States and the "international community" against "international terrorism." Modern laws of war are portrayed as the bright line that distinguishes the "international community" from "unlawful combatants." The threat posed by unlawful combatants has been portrayed as so exceptionally grave that the international community is justified in the transgression of those very laws of war that constitute the distinction between "us" and "them." In consequence the efficacy of modern laws of war to provide humanitarian protections has been cast into doubt and many characterize humanitarian laws of war as obsolete. Existing work on the politics of exception and the exclusion of Guantánamo Bay detainees from US federal law does not frame the problem of the exception in terms of international law. Though many consider the prerequisites for politics of exception absent in the international system, I argue that a dispersed notion of sovereignty and constructivist approaches to law resolve obstacles to considering the exception at the level of the state system. I explore system level exceptional politics through a critical reading of modern laws of war. Rejecting essentialist historical narratives, I first conduct a genealogical study of laws of war from ancient Greece through the Middle Ages. I then conduct a critical reading of three texts from the War on Terrorism; Barack Obama's 2009 Nobel Peace Prize acceptance speech, John Brennan's "The Ethics and Efficacy of the President's Counterterrorism Strategy," and Medea Benjamin's interruption of John Brennan. I argue that modern narratives of war law venerate codification and textually privilege a "mystical" figure of modern law. This figure empowers a universalized "international community" as law's privileged agent. Violence employed by this archetypal community, even when outside the law, is rendered ethically pure and historically necessary. In consequence modern humanitarian law as a bright line always permits excluded archetypal identities and vast powers of violence are mobilized by the "international community" against discrete individual human bodies who are identified with this excluded archetype, or who simply find themselves in the way.
ContributorsHickman, Peter L (Author) / Doty, Roxanne (Thesis advisor) / Ashley, Richard (Committee member) / Thomas, George (Committee member) / Arizona State University (Publisher)
Created2014
Description
In this discussion I will state fundamental principles of Kelsen's Legal Positivism in International Law and explain four problems with his theory. I will then propose two suggestions in the light of which Kelsen's theory is modified in this discussion and explain how these two suggestions address the four problems and help the theory account for regime change. Finally, I will address possible objections to the view advanced in this discussion.
ContributorsIoannidis, Christoforos (Author) / de Marneffe, Peter (Thesis advisor) / French, Peter (Committee member) / Fellmeth, Aaron (Committee member) / Arizona State University (Publisher)
Created2012
Description
On December 27, 2008, Israel began a military campaign codenamed Operation Cast Lead with an aerial bombardment of the Gaza Strip. On January 3, 2009, Israel expanded its aerial assault with a ground invasion. Military operations continued until January 18, 2009, when Israel implemented a unilateral cease fire and withdrew its forces. When the hostilities had ended, between 1,166 and 1,440 Palestinians had been killed as a result of Israeli attacks, two-thirds of whom are estimated to be civilians. Ensuing allegations of international human rights (IHR) and international humanitarian law (IHL) violations were widespread. Amidst these claims, the United Nations Human Rights Council (UNHRC) commissioned a fact-finding team, headed by South African jurist Richard Goldstone, to investigate whether the laws of war were infringed upon. Their findings, published in a document known colloquially as the Goldstone Report, allege a number of breaches of the laws of occupation, yet give a cursory treatment to the preliminary question of the applicability of this legal regime. This paper seeks to more comprehensively assess whether Gaza could be considered occupied territory for the purposes of international humanitarian law during Operation Cast Lead. In doing so, this paper focuses on exactly what triggers and terminates the laws of occupation`s application, rather than the rights and duties derived from the laws of occupation. This paper proceeds with a brief discussion of the history of the Gaza occupation, including Israel`s unilateral evacuation of ground troops and settlements from within Gaza in 2005, a historic event that sparked renewed debate over Israel`s status as an Occupying Power vis-à-vis Gaza. The following section traces the development of the laws of occupation in instruments of IHL. The next section considers the relevant international case law on occupation. The following section synthesizes the various criteria from the IHL treaty and case law for determining the existence of a situation of occupation, and considers their application to the Gaza Strip during Operation Cast Lead. The concluding section argues that Israel maintained the status of Occupying Power during Operation Cast Lead, and discusses the legal implications of such a determination.
ContributorsNaser, Sam (Author) / Simmons, William (Thesis advisor) / Sylvester, Douglas (Committee member) / Rothenberg, Daniel (Committee member) / Arizona State University (Publisher)
Created2011
Description
What explains why governments and militaries pursue accountability against some human rights violations committed by members of their armed forces during ongoing conflicts, but not other violations? Further, what are the consequences of such prosecutions for their military and governmental objectives? The theory put forth by this study suggests that rather than only the natural outcome of strong rule of law, domestic prosecutions within a state’s security apparatus represents a strategic choice made by political and military actors. I employ a strategic actor approach to the pursuit of accountability, suggesting that the likelihood of accountability increases when elites perceive they will gain politically or militarily from such actions. I investigate these claims using both qualitative and quantitative methods in a comparative study across the United States and the United Kingdom. This project contributes to interdisciplinary scholarly research relevant to human rights studies, human rights law, political science, democratic state-building, democratic governance, elite decision making, counter-insurgency, protests, international sanctions, and conflict resolution. Particularly, this dissertation speaks to the intersection of strategy and law, or “lawfare” a method of warfare where law is used as means of realizing a military objective (Dunlap 2001). It provides generalizable results extending well beyond the cases analyzed. Thus, the results of this project will interest those dealing with questions relating to legitimacy, human rights, and elite decision making throughout the democratic world.
ContributorsSimmons, Alan James (Author) / Wood, Reed (Thesis advisor) / Peskin, Victor (Thesis advisor) / Lake, Milli (Committee member) / Arizona State University (Publisher)
Created2018
Description
The disputes in the South China Sea involve overlapping territorial claims from multiple nations and have grown increasingly contentious over the past decade. The area is rich in natural resources and is strategically significant regarding international trade and military capabilities. Due to the significance of the area, the competing claims have global ramifications and the conflict involves actors beyond the region. This paper examines the geopolitical factors involved in the disputes and how they shape states' actions in relation to the South China Sea. Specifically, this paper will show how China's actions in the South China Sea reflect both the geography of the region, and also its political ambitions in the region and international community. The states' claims contend the territory, territoriality, and sovereignty of islands in the South China Sea, and are based on both international law and historical evidence illustrated in the case between the Philippines and China in the Scarborough Shoal. It demonstrates China's tactics for managing competing claims, its increasing military capabilities, and the uncertainty of resolutions to the conflict. The mechanisms for the resolution of the territorial disputes in the South China Sea are shown to be largely ineffective given the differing basis of claims over the South China Sea states have. International institutions, such as United Nations tribunals, and other nations without direct claims in the South China Sea, such as the United States, have interests in the conflict related to the peaceful resolution of disputes between nations, while also influencing states' actions. This paper reviews the concepts of geopolitics and how China's strategy in the South China Sea reflects both critical and classical geopolitics and its objective of regional hegemony.
ContributorsKelly, Megan Jean (Author) / Sivak, Henry (Thesis director) / Lundry, Chris (Committee member) / School of Politics and Global Studies (Contributor) / Barrett, The Honors College (Contributor)
Created2016-12
Description
This thesis is the culmination of the Barrett Honors Intercontinental Study Award. For this scholarship, I created a comparative legal study of the approaches to juvenile justice in Norway, Germany, Malawi, and Japan, focusing on their compliance with international norms of restorative justice practices advanced by the United Nations (UN) in the Convention on the Rights of the Child (CRC). Before commencing my comparative study, I traveled to Switzerland and Belgium to speak with restorative justice theorists at the UN and the International Juvenile Justice Observatory about the enduring relevancy of the CRC and international juvenile justice efforts. In the process, I examined how these international norms of restorative justice come to be incorporated in domestic legal systems. From this, I gained an understanding of the reasons some countries successfully adapt international norms while others struggle to uphold even the most basic human rights. My goal throughout this process has been to cull best practices for international norm creation and domestic norm implementation from this research, and further study how best to promote restorative juvenile justice in countries that do not meet international standards, beginning with the United States. For the purpose of this thesis, I will focus my analysis on Norway and Malawi.
ContributorsNicoletti, Brigitte (Author) / Herbert, Anne (Thesis director) / Durfee, Alesha (Committee member) / Barrett, The Honors College (Contributor)
Created2017-05
Description
Immigrants, refugees, asylum seekers. Three words describing the same group of people. Individuals seeking a better, safer life.
Western media is focused right now, in 2016, on the humanitarian crisis from the Middle East to the European Union; just like two years ago it was centered on the huge numbers of unaccompanied minors immigrating into the United States from Central America. Media changes its focus but problems do not end with a change of headlines.
Unaccompanied minors are the most vulnerable population looking for asylum. This study looks at two different immigration flows of unaccompanied minors: one from the Middle East going to the European Union; and the other one from Central America to the United States.
This research finds similarities and differences between these two flows of migrant children related to the reasons why they leave their countries of origin, their experiences during the trip to the destination countries, the asylum process, the legal status of these children and how these minors are perceived by societies in the destination countries. Using a human rights law framework, this thesis will explore the continuum of violations of human rights that these children endure on their journey from their origin countries to their destination states.
Through interviews with former and current direct providers of unaccompanied minors seeking asylum, previous scholarly work, documentaries and news articles on the subject, it will make clear that these two flows of children fleeing to different destinations have much more in common than what may be initially perceived.
This emergent, exploratory and inductive qualitative research will bring light to asylum law and question why the social responsibility to protect children seems to skip the most vulnerable ones: unaccompanied minors seeking asylum.
Western media is focused right now, in 2016, on the humanitarian crisis from the Middle East to the European Union; just like two years ago it was centered on the huge numbers of unaccompanied minors immigrating into the United States from Central America. Media changes its focus but problems do not end with a change of headlines.
Unaccompanied minors are the most vulnerable population looking for asylum. This study looks at two different immigration flows of unaccompanied minors: one from the Middle East going to the European Union; and the other one from Central America to the United States.
This research finds similarities and differences between these two flows of migrant children related to the reasons why they leave their countries of origin, their experiences during the trip to the destination countries, the asylum process, the legal status of these children and how these minors are perceived by societies in the destination countries. Using a human rights law framework, this thesis will explore the continuum of violations of human rights that these children endure on their journey from their origin countries to their destination states.
Through interviews with former and current direct providers of unaccompanied minors seeking asylum, previous scholarly work, documentaries and news articles on the subject, it will make clear that these two flows of children fleeing to different destinations have much more in common than what may be initially perceived.
This emergent, exploratory and inductive qualitative research will bring light to asylum law and question why the social responsibility to protect children seems to skip the most vulnerable ones: unaccompanied minors seeking asylum.
ContributorsTomasini, Maria Lujan (Author) / Luna, Ilana (Thesis advisor) / Vargas, Carlos (Committee member) / Cuadraz, Gloria (Committee member) / Arizona State University (Publisher)
Created2016
Description
Protracted Refugee Situations (PRS) are of serious concern due to their adverse impacts on human rights and stability in host countries. This thesis profiles three, so-called, durable solutions for refugees: local integration, third country resettlement, and voluntary repatriation. However, refugees living in PRS are not given any durable solutions, and they remain confined to refugee camps while the conflicts that forced them from their homelands continue. Refugees usually find themselves in PRS as a result of the restrictive policies of the country in which they have sought refuge. These conditions not only deprive refugees of basic human rights, but act as catalysts for political violence, insurgency, and radicalization. This thesis examines, in detail, one such case: Nahr al-Bared, a Palestinian refugee camp in Lebanon where refugees have been living in PRS for decades due to stringent refugee policies that contributed to violent clashes that took place in May 2007. The denial of human rights for Palestinians in Lebanon has effectively marginalized already disempowered refugee populations, thereby increasing the likelihood of instability and radicalization. The denial of rights, a lack of opportunities, and confinement to the poor conditions of the refugee camp, are driving forces of political violence and militant rhetoric. This situation can endanger the refugee host country as well as the refugees, who are civilians in need of international protection. Therefore, there is a strong connection between the inclusion of rights for refugee populations in a host country, and peace and security. The case of Palestinians in Lebanon is examined as a microcosm of the notion that human rights and state security are interdependent. Recognition of this interdependence necessitates a paradigm shift in perspectives and policies of international refugee protection and state security, from regarding PRS as an indefinite state of emergency to be contained, to acknowledgment that the indefinite duty to protect refugees in protracted situations simultaneously serves the host country's security concerns.
ContributorsBeydoun, Rema-Therese (Author) / Klimek, Barbara (Thesis advisor) / Casper, Monica (Committee member) / Koptiuch, Kristin (Committee member) / Arizona State University (Publisher)
Created2010
Description
In 2021, Palestine will have been under official Israeli occupation for 54 years. As conflict persists between the two populations, it is becoming increasingly difficult to imagine a peaceful resolution. As international legal bodies have failed to bring an end to the occupation, the Israeli government continues to carry out extensive violations of human rights against the Palestinians. One significant consequence of the occupation has been the Palestinians’ lack of access to safe and reliable water, a problem that is continuing to worsen as a result of climate change and years of over-utilization of shared, regional water resources. Since the occupation started, international organizations have not only affirmed the general human right to water but have overseen several peace agreements between Israel and Palestine that have included stipulations on water. Despite these measures, neither water access nor quality has improved and, over time, has worsened. This paper will look at why international law has failed to improve conditions for Palestinians and will outline the implications of the water crisis on a potential solution between Israel and Palestine.
ContributorsTimpany, Grace Louise (Author) / Haglund, LaDawn (Thesis director) / Rothenberg, Daniel (Committee member) / School of Politics and Global Studies (Contributor, Contributor, Contributor) / School of Sustainability (Contributor) / School of Social Transformation (Contributor) / Barrett, The Honors College (Contributor)
Created2021-05
Description
This thesis investigates the scope of the Law of the Sea in terms of managing deep-sea mining, mediating territorial sea disputes, and supporting a system of international cooperation to facilitate stable ocean governance. The application of the Law of the Sea to international marine matters is best exemplified through the United Nations Convention on the Law of the Sea (UNCLOS), a treaty that provides guidance and supervision over the ocean. UNCLOS will be the main legal framework for assessing the developments of deep-sea exploration for mineral extraction, overlapping territorial sea claims, and threats to ocean health. Analysis of past territorial claim disputes illustrates that claims arise from desires for ownership over plentiful natural resources located in disputed waters. This results in territorial sea disputes furthering the continuation of the supremacy of state sovereignty over international waters and disregarding how the ocean is an interconnected flowing element. The most transformative challenge facing the Law of the Sea is deep-sea mining, which threatens to disrupt entire marine ecosystems through invasive mining practices. I argue that by creating a polycentric mode of ocean governance, the health of the ocean (and the planet) will be preserved. At the end of the thesis, I will recommend that an interactive, transdisciplinary, participatory, and problem-solving model of governance combined with building on existing legal regimes is necessary to respond to the challenges raised in the Law of the Sea.
ContributorsSimper, Mlada (Author) / Bowman, Diana (Thesis director) / Comstock, Audrey (Committee member) / Barrett, The Honors College (Contributor) / Dean, W.P. Carey School of Business (Contributor) / School of International Letters and Cultures (Contributor)
Created2023-05