Dissertations / Theses on the topic 'Self-defence (law)'

The legal rules governing the use of force between States is one of the most fundamental, and the most controversial, aspects of international law. An essential part of this area is the question of when, and to what extent, a State may lawfully use force against another in self-defence. This is particularly pertinent in the current climate within international relations when one considers that self-defence may be a possible means by which a State may respond to terrorist activity. However, the parameters of this inherent right remain obscure, despite the best efforts of scholars and, notably, the International Court of Justice. This thesis examines the relationship between the Court and the right of self-defence. Following the attacks of 11 September 2001, there have been three major decisions of the ICJ that have dealt directly with the law governing self-defence actions. This is in contrast to only two such cases in the preceding fifty years. Thus, the jurisprudence of the Court on this issue has for the first time been comprehensively drawn together, and then the merits of that jurisprudence have been assessed. It is argued that the contribution of the ICJ has been confused and unhelpful, and, moreover, is at odds with customary international law. The ICJ's fundamental conception of a primary criterion of 'armed attack' as constituting a qualitatively severe use of force must be brought into question.

Terrorist attacks pose a huge threat these days. The attack in Paris on 13 November 2015 has shown that. The terrorist organisation Islamic State (hereinafter: IS) claimed responsibility for the attack. France (and the USA) reacted by launching massive air strikes against the IS stronghold in Raqqa/Syria. Furthermore, France declared that it was exercising its right to self-defence, Art. 51 of the United Nations Charter (hereinafter: UNC). According to the traditional view in international law, the right to self-defence requires an armed attack by a state or alternatively, if the attack was launched by a non-state actor, that the attack is attributable to a state. The thesis illustrates that the IS is not a state under international law as it does not fulfil all four criteria of statehood. Since the 9/11-attacks in 2001, it is highly debated, whether this traditional view is still appropriate. Some commentators are of the opinion that an armed attack under Art. 51 of the UNC can also originate from a non-state actor. The thesis highlights that this view is not correct. In order to qualify the attack of a non-state actor as an armed attack under Art. 51 of the UNC it must still be attributable to a state. The thesis shows that the attack in Paris is not attributable to the Syria. Neither under the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, nor under the Safe Haven-Doctrine or the Unwilling or Unable-Doctrine, whereby the focus of the thesis lies on the last mentioned doctrine. The content of the doctrine is analysed as well as the question whether or not the doctrine is already a norm of customary international law, which is not the case. The thesis then discusses a new interpretation of the rules of attribution in form of the clarified Unwilling or Unable-Doctrine. The underlying idea of this doctrine is that all states have certain counter-terrorism obligations from which due diligence obligations vis-à-vis other states arise. Based on this idea a definition of the terms 'unable' and 'unwilling' is elaborated. Although the elaborated definitions give the clarified Unwilling or Unable-Doctrine a clearer content, there is still a tension between the attacked state's right to self-defence and the host state's territorial sovereignty. In order to mitigate this tension four preconditions, based on the existing law, are developed. To render the defensive use of force by the attacked state lawful, these preconditions have to be fulfilled. The thesis concludes that the Paris attack is not attributable to Syria. Thus, there was no armed attack by Syria on France. The thesis further concludes that the current rules of attribution do not meet today's challenges, namely the threat that terrorist attacks pose and that there is an urgent need for a clarification of the rules of attribution.

The lawful use of nuclear weapons in self-defence sits in a precarious and fraught position amongst lawyers, states and scholars, primarily due to their indiscriminate destructive nature. The use of nuclear weapons is the biggest threat to peace and security yet they exist under obscurity in International Law. The purpose of this paper is to examine at what point, and under what circumstances, a State is lawfully permitted to use nuclear weapons in self-defence. The right to self-defence is a basic normative right codified in the United Nations Charter (UN Charter). The inherent right to self-defence is the primary justification for the use of nuclear weapons according to the International Court of Justice in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion). Even so, nuclear weapons would still have to meet the threshold of self-defence and the cardinal principals of ‘imminence’, ‘necessity’ and ‘proportionality’ which regulate the lawfulness of a state’s actions in self-defence. Since there has only been two situations where nuclear weapons have been used- in Hiroshima and Nagasaki in 1945- it is necessary to examine three hypothetical situations in which nuclear weapons are used in self-defence to determine if, under any, exceptional circumstances such action could be lawful.

When states use force extraterritorially, they invariably claim a right of self-defence. They also accept that its exercise is conditioned by the customary international law requirements of necessity and proportionality. To date, these requirements have received little attention. They are notorious for being normatively indeterminate and operationally complex. As a breach of either requirement transforms lawful acts of self-defence into unlawful uses of force, increased determinacy regarding their scope and substance is crucial to how international law constrains military force. This thesis addresses this fact. It examines the conceptual meaning, content and practical application of necessity and proportionality as they relate to the right of self-defence following the adoption of the UN Charter. It provides a coherent and up-to-date description of the lex lata and an analytical framework to guide its operation and appraisal. It does this by undertaking the first comprehensive review of relevant jurisprudence, academic commentary and state practice from 1945 to date. Although the operation of necessity and proportionality is highly contextual, the result is a more determinate elaboration of international law that bridges theory and practice. This greater normative clarity strengthens the law's potential to exert a pull towards compliance. Necessity determines whether defensive force may be used to respond to an armed attack, and where it must be directed. Proportionality governs how much total force is permissible. This thesis contends that the two requirements are conceptually distinct and must be applied in the foregoing order to avoid an insufficient 'catch-all' description of (il)legality. It also argues that necessity and proportionality must apply on an ongoing basis, throughout the duration of an armed conflict prompted by self-defence. This ensures that the purposes of self-defence are met, and nothing more, and that defensive force is not unduly disruptive to third party interests and international peace and security.

This thesis aims to examine two issues related to the defence of self-defence in criminal law. Firstly, it is an investigation into the theory of excessive force in selfdefence. The essence of the theory is to have a person who excessively applies force in his defence to be convicted of manslaughter. The arguments in favour of the theory are compelling; however, in practice, the issue of excessive defence has always been a brain-teaser for judges. This thesis elaborates the controversies surrounding the application of the theory in the courts. The reason for its demise and arguments for its revival are discussed. Secondly, this work analyses the incorporation of the doctrine of the "battered woman syndrome" into the defence of self-defence. This doctrine has recently been introduced where, upon its acceptance by the court, an accused will be successful in pleading self-defence despite the fact that the traditional requirement of imminence has not been satisfied. There is discussion whether the doctrine has always been necessary for battered woman in claiming self-defence. This thesis focuses, in the main, on decided cases and, wherever necessary, a comparison is made of the two theories mentioned above in the law of self-defence in England, Australia and Canada.

This thesis examines the development of the concept of individual and collective self-defence as expressed in Article 51 of the UN Charter. In doing so, it will analyse the attempts to stretch the scope of the right of self-defence beyond the limits allowed under Article 51 and assess whether such attempts have undermined the Charter regime. The concept of self-defence is seen as part of a series of evolutionary attempts to limit the horrors of war by formulating criteria for the legitimacy of armed force. This study looks at the developments from the racial and religiously- motivated medieval concept of "Just War", and the "defensive" Islamic concept of Jihad, through arbitration and treaty between sovereign states, to the development of the legal doctrine of self-defence, subject to the criteria of necessity and proportionality, established in the Caroline case. The focus is on the modem development of the concept of self-defence in the UN era, has developed within the context of a global collective security system.However, the circumstances of its drafting left Article 51 with a number of ambiguities and inadequacies, which are explored with reference to illustrative examples from recent history. Attention is drawn to the nature and scope of the so-called "inherent right"; the difficulties surrounding the definitions of "armed attack" and "aggression" as events which activate the sight of self-defence; and the unforeseen burden placed on Article 51 as a result of the paralysing effect of the Cold War on the collective security system. A further development in recent years has been a trend to fit Article 51 to the scope of the post-colonial, post-Cold War era, by attempting to enlarge it, both temporally and spatially. The former leads to claims for various forms of anticipatory and retrospective defence; the latter to broader conceptions of the people, territory and governance system to be defended whereby the legal framework of Article 51 is made subject to political and humanitarian considerations. However well-intentioned, such trends would greatly increase the number of exceptions to the prohibition in Article 2(4) and open the door to misuse of the Article 51 provision thereby increasing the danger of threats to peace and security.Clearly, the 1945 conception of self-defence is no longer adequate to deal with the changing force of international relations. Article 51 must change; the question is whether it can do so within the spirit of its nature as an "emergency" response with value especially to weaker and third world nations.

This thesis is a critical analysis of the law of self-defence in Scotland and England. It is argued that it is far more difficult to justify the use of lethal force in self-defence than is commonly assumed and that, drawing on the work of Uniacke, the most convincing justification is on the basis of a right to life, accompanied by a theory of forfeiture. That is, the victim of an attack is entitled to protect herself from an aggressor who threatens her right to life. The reason why she is permitted to kill the aggressor, but the aggressor is not permitted to kill her, is because an aggressor forfeits her right to life by virtue of becoming an unjust immediate threat to the life of another. However, the right to life is seen as a fundamental right that should be respected in relation to all human beings, even aggressors, as far as is reasonably possible. This is because, unlike almost all other types of loss, a deprivation of life is something from which the victim can never recover and for which the victim can never be compensated. As such, it is argued that an aggressor's right to life is only forfeited at the point where it is no longer reasonably possible to save both the life of the victim and the life of the aggressor. On this basis, the thesis proceeds to argue that the law of self-defence should contain strict rules on when it is permissible to take the life of another human being. As such, relatively restrictive rules are proposed in relation to five specific aspects of self-defence law: retreat, mistake, self-generated self-defence, imminence and proportionality. It is suggested that Scots law conforms to these strict rules to a greater extent than does English law.

This thesis is about identifying valid self-defence claims in the UN collective security system. The thesis suggests a fresh theoretical approach to balancing the imperative for adaptation of the right of self-defence with the danger that too broad a right could be exploited by states wishing to justify national policy. The starting point for the thesis is the twin realist criticisms that the right of self- defence is either too narrowly drawn and therefore not fit for the purpose of protecting states‘ interests, or too broadly drawn and therefore hostage to the subjective interpretation of states using force. These problems were intensified during the Administration of former President G.W. Bush in the USA. In this work, these two criticisms are dubbed 'esotericism' and 'exploitation' respectively. The problem of self-defence, as an exception to the general prohibition on the use of force, is often phrased in terms of a choice between the is of state practice and the ought of abstract norms. In this thesis, it is suggested that no such choice needs to be made. In order to identify a valid self-defence claim, the is of evaluative state practice is harnessed and constrained by a process of argumentation grounded in mutual understanding of the facts of a given case. Two strands of social theory are used to accomplish this. One of them questions whether states have to be conceived as rationally self-interested actors and suggests that the key to the identification of valid self-defence claims is for states to take responsibility for their claims and evaluations of the right. The other strand of theory expands on Habermas‘ idea of the criticizable validity claim. The report that self-defence has been used should act as a starting point for argumentation and not the last word in national process of decision.

The world has found itself in the unsatisfactory position of depending greatly upon the services of satellites, all while the risk of satellites becoming targets during conflict looms ever greater. This paper assesses the lex lata of the law of self-defence as enshrined in the Charter of the United Nations, focusing on the rationae materiae aspect of the armed attack concept. It thereafter applies general conclusions in this regard to the specific context of hostile acts against satellite systems, with an aim to clarify under what conditions such hostile acts justify the exercise force in self-defence.

The study is based upon an analysis of the general principles of criminal liability in English law and Shari 'ah. It is hoped that it may provide a valid basis for discussion of the future development of criminal law. The relationship between law and society is an organic one and this relationship in Shari'ah is based on revelatory text of precepts, law, and admonitions. Shari'ah is an essential part of faith of every Muslim; a sound knowledge of its principles not only gives him a sense of inner fulfilment but enables him to order his life according to the dictates of his religion. On the other hand, in English law, religious beliefs and private morality might be viewed as not a matter for law. Religion is in that context generally conceived as a spiritual sphere of supra-human connotation distinct from law, which is basically a secular concern. Both the systems of law under consideration are different in their sources and nature. English law, being a positive law, finds its source in legislation and other recognised sources. Shari 'ah is a divine ordinance imposed upon people without having a freedom of choice and it has its roots in its primary sources, the Holy Qur'an, and the Sunnah. However, the revelatory nature of Shari'ah does not render it entirely inflexible and immutable. The finality of authoritative legal texts is confined only to a limited number of injunctions in the primary sources. The secondary sources provide flexibility to meet the changing requirements of society. A legal system should strike a fair balance between flexibility and inflexibility of legal rules. A very flexible system of law may lead to inconsistencies, illogicalities and at the same time may be subject to abuse by judges while a rigid system, which leaves no room for judicial discretion is likely to lead to injustice in certain cases. It is submitted that the very flexible nature of English law has left it full of inconsistencies and illogicalities, despite the appropriate use of judicial discretion. The research offers a general view of modern thinking about the theoretical foundations and methodology of Shari'ah Shari 'ah recognises a variety of sources and methods from which a rule of law might be derived. Part-I of the thesis discusses the evolving principles of Islamic jurisprudence from their rudimentary sources. The specific relationship between socio-religious reality and the production of theoretical legal discourse is illustrated in Part-11 and III while dealing with the problem of intoxication and private defence in society. It suggests that Shari'ah provides a framework in which the complex and sometimes competing needs of an individual and society can be fairly apportioned. The research will demonstrate that there is a well developed system of criminal law in Shari'ah that can be compared with the most developed and civilised criminal law of the contemporary world, for example, English criminal law. In order to compare the compatibility of both the legal systems, the approaches of both towards the problems of intoxication and self-defence have been taken as a parameter. Though Shari 'ah provisions seem to be predominantly prescriptive as compared to English criminal law, the comparison will show that it can provide practical solutions to problems faced by human society of any age. Shari 'ah being a revealed law is proactive in its nature. It takes action to cause changes and not only react to a change when it happens. This particular feature can be felt while dealing with the problem of intoxication. English criminal law, on the other hand, being a positive law bears the characteristics of a reactive law. It reacts to events or changes rather than acting first to cause change or prevent something. Another major difference between the two legal systems might be that English criminal law has passed through many evolutionary phases and reached at the present stage through the efforts of the political power and the state; whereas, Muslim states and governments throughout the centuries neither had a hand in the development of Islamic jurisprudence nor in the training and certification of jurists or jurisconsults whose task it was to formulate the law. History suggests that using the combined forces of religion, morality and law Shari'ah has effectively eradicated social evils and created a peaceful environment for human coexistence, where every one can enjoy his rights without a fear of infringement by the others. In cases of infringement of such rights, the offender shall be liable to severe punishments. The principles of criminal liability are on a par with the corresponding principles of the English criminal law. While protecting the rights of the victim of the crime, Shari'ah does not ignore the rights of the offender for fair trail, impartial justice and liability for punishment proportional to the offence committed by him. At the same time it recognises excuse and justification defences under appropriate circumstances, as it will be evident while comparing the defences of intoxication and self-defence with the same in English criminal law. The study reveals that there are similarities and differences between English law and Shari'ah when considering the issue of crime and criminal liability. However, this may be considered as normal phenomenon of comparing any two different legal systems. The differences can be attributed to their sources, origin, history and nature of the social values to be protected. Similarities can be ascribed to zeal for social justice and stability. The study of differences and similarities will provide an opportunity to illuminate our understanding of law and the process of its development. As both the systems have their own methodology to tackle legal issues, a different approach to the similar problem will provide a fresh insight leading to revitalised solutions. It will also be helpful to understand the methodology and the legal reasoning of both the systems leading towards a better understanding of law in general and at the same time providing efficient means for improvement.

This master thesis provides an analysis of the legality of preemptive self-defence under international law. In assessing the lawfulness of preemptive self-defence two basic sources of international law: customary and treaty law are examined. The analysis of the UN Charter rules showed that there is strong disagreement between scholars regarding the legality of anticipatory self-defence. However, the term “armed attack” in article 51 UN Charter should embrace imminent threats. Two basic reasons are: the advent of weapons of mass destruction (WMD) and new methods of warfare; the inherent right of anticipatory self-defence was not exhausted after the adoption of the UN Charter. The examination of customary international law showed that the Caroline doctrine allows states to act in anticipation of an armed attack if the requirements of necessity and proportionality are fulfilled. In addition, the analysis of state practice and opinion juris prior and after September 11, 2001, revealed that anticipatory self-defence is not prohibited. The conclusion is maid that the right of anticipatory self-defence, if requirements of necessity and proportionality are fulfilled, is not illegal under international law. In contrast, the analysis of the UN Charter rules showed that preemptive self-defence against perceived threats is not legal under the UN Charter, because there is no actual armed attack or imminent threat against which state can legally defend itself. In addition, preemptive... [to full text]
Šioje magistro tezėje analizuojamas preventyviosios savigynos teisėtumo tarptautinėje teisėje klausimas. Du pagrindiniai tarptautinės teisės šaltiniai: sutarčių bei paprotinė tarptautinė teisė yra nagrinėjami siekiant išsiaiškinti, ar preventyvioji savigyna yra legali tarptautinė teisėje. Pirmoje darbo dalyje nagrinėjamas preventyviosios savigynos prieš neišvengiamas grėsmes (angl. anticipatory self-defence) legalumas dviejų pagrindinių tarptautinės teisės šaltinių atžvilgiu. Pagrindinė tarptautinė sutartis reguliuojanti karinės galios naudojimą yra Jungtinių Tautų (JT) Chartija. Nagrinėjant preventyviosios savigynos prieš neišvengiamas grėsmes legalumo JT Chartijos normų, reguliuojančių savigyną, atžvilgiu, buvo nustatyta, kad autoriai nesutaria dėl to, ar JT Chartija leidžia naudoti karinę galią prieš neišvengiamas grėsmes. Pagrindiniai mokslininkų nesutarimai kyla dėl JT Chartijos 51 straipsnio, kuris leidžia JT valstybėm narėm savigynos tikslais naudoti karinę galią, ginkluoto užpuolimo atveju, formuluotės. Iš esmės, nesutariama dėl dviejų frazių vartojamų JT Chartijos 51straipsnyje: „prigimtinė teisė“ bei „ginkluotas užpuolimas“ (angl. „the inherent right“, „armed attack“). Autorių susiskaidymas šiuo klausimu neleido nustatyti, ar preventyvioji savigyna prieš neišvengiamas grėsmes yra legali. Dėl to, buvo nagrinėjama, ar JT Chartijos 51 straipsnyje minima ginkluoto užpuolimo sąvoka apima neišvengiamas grėsmes ir tokiu būdu minėta tarptautinė sutartis leidžia... [toliau žr. visą tekstą]

In un mondo sempre più dipendente dalla tecnologia, lo spazio cibernetico, si è convertito nella dimensione, seppur artificiale, in cui svolgiamo la maggior parte delle nostre attività. I paesi più soggetti a essere bersagli di 'cyber operations’ e di ‘cyber attacks’ sono quelli più tecnologicamente avanzati e informatizzati, proprio per la loro crescente interdipendenza e interconnessione. Allarmati dal fatto che le operazioni cibernetiche possano rappresentare una minaccia alla sicurezza e alla pace nazionale e internazionale, autorità nazionali e organi regionali ed internazionali si sono posti come priorità quella di regolare le operazioni cibernetiche sotto il diritto internazionale e sotto il diritto internazionale umanitario. Viste le caratteristiche peculiari di tale dimensione e la sua notevole velocità di cambiamento, le difficoltà incontrate nel regolamentare le sopracitate operazioni non sono poche. L’elaborato si propone l’obiettivo di analizzare come la lex lata riguardante la proibizione della minaccia e dell’uso della forza, il diritto di legittima difesa individuale e collettiva e, nel caso di un conflitto armato pre-esistente, le regole che disciplinano i mezzi e i metodi di combattimento possano essere applicati alle operazioni cibernetiche. Con questo fine, si analizzeranno i dilemmi interpretativi ancora esistenti riguardo la definizione di ‘uso della forza’ in riferimento all’Art. 2(4) della Carta delle Nazioni Unite; la definizione di ‘attacco armato’ in riferimento all’Art. 51 della Carta delle Nazioni Unite; e la nozione di ‘attacco’ con riferimento al diritto internazionale umanitario. Inoltre, si traccerà una tassonomia delle operazioni cibernetiche conosciute finora, analizzando non solo la loro natura ma anche gli effetti che possono provocare. In secondo luogo, si argomenterà come e fino a che punto lo jus ad bellum e lo jus in bello si possono applicare alle operazioni condotte nella dimensione cibernetica. Si proverà a definire (1) quando un’operazione cibernetica può essere definita ‘uso della forza’ e quindi rappresentare una violazione dell’Art. 2 (4) della Carta delle Nazioni Unite; (2) quando un’operazione cibernetica può essere definita come ‘attacco armato’ secondo l’Art.51 della Carta delle Nazioni Unite e quindi consentire l’uso della forza in legittima difesa individuale o collettiva; (3) quando un’operazione cibernetica durante un conflitto pre-esistente può considerarsi lecita o illecita secondo le regole del diritto internazionale umanitario. Per ultimo, si discuterà di cyber warfare e di cyber operations come strumento strategico od operativo, o come eventuale metodo di deterrenza nelle relazioni internazionali.

The United Nations, states and regional organisations have spent invaluable time and resources to maintain international peace and security in a largely anarchical international system, owing to armed conflicts between states and non-state actors (NSAs). This state of affairs is exacerbated by the proliferation of weapons of mass destruction, transnational terrorist networks, failed states and a disregard for international norms by powerful states. This is in spite of the normative and policy frameworks that have been established to constrain the use of force by states in the territories of one another. Article 2(4) of the United Nations Charter prohibits the use of force by states in their relations, unless they rely on the exceptions in articles 51 and 42 and the customary law doctrine of ?consent?. In addition, it was the requirement of international law that a state may use force against NSAs, only if it attributes the conduct of the NSAs to a state. This thesis examines the extraterritorial use of force by states against terrorist non-state actors, and the focus is to answer the question ?whether the law of self-defence has been transformed?. The investigation has been conducted with particular attention to whether the post 9/11 practice of states, the Security Council resolutions 1368 and 1373, the use of pre-emptive self-defence by the United States, Israel and a few other states, the disregard for attribution of the conduct of NSAs to states and the overwhelming international support for contemporary incidents of the use of force by states against NSAs, such as Al Qaeda, the Taliban, Al-Shaabab, the Khorasan Group and the Islamic State of Iraq and the Levant, have caused a change in the law of self-defence. Firstly, the study finds that pre-emptive self-defence which does not require imminence has not been accepted as part of international law and it argues that its unlawful use could not cause a change in the law. Secondly, as far as the use of self-defence against non-state actors is concerned, it finds that the actions of the United States against Al Qaeda following resolutions 1368 and 1373 of the Security Council, the lowering of the attribution standard and the toleration by the international community of the use of force against terrorists in Afghanistan, Iraq, Syria, Lebanon, Yemen, Pakistan, Ecuador, Somalia and Mali without attributing their conduct to states, could be interpreted as amounting to a transformation of the law of self-defence. Accordingly, this study recommends the acceptance of the lowered threshold in the attribution requirement, but it also recommends a corresponding disregard of ?pre-emptive self-defence? as not forming part of the corpus of international law. It is also recommended that the jurisdiction of the International Criminal Court be enlarged to try transnational terrorism as one of the egregious crimes against mankind.
Thesis (LLD)--University of Pretoria, 2016.
Centre for Human Rights
LLD
Unrestricted

The first efforts to formulate the norms banning the use of force were reflected in the 1928 Kellogg–Briand pact. In the contemporary international law, prohibition of force has gained an extremely immense significance with the balance of powers changing and the processes of globalisation picking up pace. Emerging threats and the legal character of how different states respond to them is one of the most pressing topics of today’s international law. Obviously, the authors of the Charter could not have foreseen the modern challenges for the international peace and security, like the threat of weapons of mass destruction and the terrorism. The peacekeeping forces, the peace agenda, the humanitarian intervention have come to be the new examples of response to the contemporary challenges for the international peace and security and of a flexible practical application of the Charter’s provisions.

The Master's Paper analyses the scope of the right to self-defence under international law. The Author seeks to present a thorough evaluation of the provisions of the United Nations Charter, the rules formed in the customary international law, the jurisprudence of the International Court of Justice as well as the state practice in respect of the implementation conditions of the right to self-defence.The Paper also focuses on the analysis of the theory of preventive self-defence undergoing the formation process as well as on the disclosure of the predicted negative entailments attached to its legalisation.

The purpose of this thesis to to investigate if the complex and ambiguous means of a hybrid warfare strategy in the context of the ‘armed attack’ threshold. The ‘armed attack’ threshold sits within the UN Charter article 51 and it constitutes the legal provision that the right to self-defence, both unilaterally and collectively, is only triggered in the event of an ‘armed attack’. It is therefore important to determine if this threshold can through the ambiguous and complex structure of hybrid warfare be circumvented or obfuscated to prevent, delay or weaken a State’s ability to act in self- defence or by other means. To examine this problem, this thesis approached it by describing the concept of hybrid warfare and the legal framework that constitute the ‘armed attack’ notion in the context of self-defence. And by, to the extent possible analysed if the hybrid warfare means; cyber warfare, information warfare and the use or support of proxy forces could individually amount to an ‘armed attack’ by viewing how these means were used in Ukraine by Russia. This thesis argues, that a hybrid adversary can through the inherently complex and ambiguous nature of hybrid warfare and its means, obfuscate its attribution under certain circumstance to prevent, limit or delay the ability of a State to act in self-defence or by other means.

Šiame diplominiame darbe nagrinėjamas civilinių teisių gynybos institutas – savigyna. Lietuvoje ji buvo žinoma nuo seniausių laikų. Sovietų Sąjungai okupavus Lietuvą, savigyna buvo uždrausta. Kadangi šiuolaikinėje Lietuvos civilinėje teisėje šis institutas atsirado kartu su naujuoju Civiliniu kodeksu, Lietuvos teisės teoretikų jis dar beveik neanalizuotas. Teismų praktika taikant savigyną reglamentuojančias teisės normas irgi labai nedidelė. Visa tai nulėmė autoriaus pasirinkimą plačiau paanalizuoti savigyną Lietuvos civilinėje teisėje. Darbe magistrantas atskleidžia savigynos teisinę prigimtį, t. y. nurodo jos vietą civilinių teisių gynybos sistemoje. Autorius prieina išvadą, kad Lietuvos Respublikos civiliniame kodekse savigyna įtvirtinta kaip viena iš neteisminių civilinių teisių gynybos formų. Magistrantas analizuoja savigynos sąvokos ir turinio probleminius aspektus. Atsižvelgdamas į tai, kaip savigyna Lietuvoje buvo suprantama Statutų galiojimo ir vėlesniais laikais, ir remdamasis savigynos samprata kitų valstybių civiliniuose įstatymuose, jis konstatuoja, kad Lietuvos Respublikos civiliniame kodekse savigynos samprata yra nepagrįstai susiaurinta. Remiantis atliktu tyrimu, siūloma keisti kai kurias savigyną reglamentuojančias teisės normas. Darbe pateikiama savigynos būdų samprata. Plačiau analizuojamas vienas iš jų – daikto sulaikymas. Magistro darbo autorius atkreipia dėmesį į tai, kad, taikant daikto sulaikymo teisę reglamentuojančias normas praktiškai gali kilti tam... [to full text]
Presented work analyses the institute of the defence of civil rights – self-defence. It has been known in Lithuania for a very long time. Self-defence was forbidden when Lithuania was occupied by the Soviet Union. As this institute only appeared in the modern civil law in Lithuania together with the new Civil Code, it has not yet been analyzed by Lithuanian law theoreticians in more detail. Practice of courts applying legal norms which regulate self-defence is also limited. All the above mentioned reasons have influenced the author’s decision to analyze civil-defense in the Lithuanian civil law in greater detail.

The thesis examines the international law pertaining to the use of force by states, in general, and to the use of force in self-defence, in particular. The main question addressed is whether the use of force, which was purported to be in self-defence, by the United States, the United Kingdom and their allies against al Qaeda, the Taliban and Afghanistan, beginning on 7 October 2001, was lawful. The thesis focuses not only on this specific use of force, but also on the changing nature of conflict, the definition of terrorism and on the historical evolution of limitations on the use of force, from antiquity until 2006. In the six chapters which trace the epochs of international law, the progression of five inter-related concepts is followed: limitations on the resort to force generally, the use of force in self-defence, pre-emptive self-defence, the use of forcible measures short of war, and the use of force in response to non-state actors. This historical analysis includes a particular emphasis on understanding the meaning of the 'inherent right of self-defence', which was preserved by Article 51 of the United Nations' Charter. This analysis is then applied to the use of force against Afghanistan which occurred in 2001. Following the terrorist attacks of 11 September, the US and the UK notified the United Nations Security Council of their resort to force in self-defence under Article 51. Each element of Article 51 is analysed and the thesis concludes that there are significant doubts as to the lawfulness of that decision to employ force. In addition to the self-defence justification, other possible grounds for intervention are also examined, such as humanitarian intervention, Security Council authorisation and intervention by invitation. This thesis challenges the common assumption that the use of force against Afghanistan was an example of states exercising their inherent right to self-defence. It argues that if this particular use of force is not challenged, it will lead to an expansion of the right of self-defence which will hinder rather than enhance international peace and security. Finally, this thesis draws on recent examples to illustrate the point that the use of force against Afghanistan could become a dangerous precedent for the use of force in self-defence.

Legal consciousness is one of the most important concepts in criminology, which defines individual or public perception of justice, expectations of legal behaviour and demand for sanctions for the deviation from the rules. The theorized criminological perception of legal consciousness, also modern introductions on this field are passed in review in theoretical part of this study. The positive, the subjective and the modern conceptions of legal consciousness are presented.

The main purpose of this work is to investigate if the US ́s killing of Osama bin Laden on 2 May 2011 in Abbottabad in Pakistan was lawful. The background to the killing is what happened on 11 September 2001 when four US airplanes were hijacked and crashed into World Trade Center and Pentagon. Al Qaeda, a terrorist organisation led by Osama bin Laden, was immediately suspected for the attacks, which led to the starting point of the US ́s ‘global war on terror’. This work tries to give a short brief on ‘global war on terror’ and answer if there is a global war on terror and/or if a new category of war is needed. In order to get an answer to the main question of this work I had to investigate if US is in an international armed conflict or in a non-international armed conflict with Al Qaida. Another important question to investigate is if an armed conflict in one State can spill over to another State and still be consider as an armed conflict. Other important questions to answer are, if Osama bin Laden was a legitimate target under international humanitarian law, if he was a civilian or if he had a continuous combat function and what level of participation in hostilities he had? Not less important is also to investigate if human rights law is applicable when Osama bin Laden was killed, especially the fundamental right to life. Lastly I end my investigation with a quick review of the laws of jus ad bellum in order to get an answer if US had a right to resort to force in Pakistan. My conclusion is that the US was not involved in an armed conflict with al Qaeda in Pakistan where the killing took place. The conflict between the US and al Qaeda in Afghanistan is to be categorised as a non-international conflict. This conflict cannot be described as a conflict that has spilled over to Abbottabad where Osama bin Laden was killed. All people, including Osama bin Laden, has a right to life. Because of lack of information on what happened in Abbottabad when Osama bin Laden was killed it is impossible to give a clear legal answer if the US had the right to kill him. It could be lawful, but it could also be considered as a crime against international human rights law.

Šiame darbe atskleistas juridinio asmens dalykinės reputacijos apsaugos reglamentavimas, praktinis įgyvendinimas bei pagrindinės jo problemos. Pirmojoje darbo dalyje buvo siekiama atskleisti juridinio asmens dalykinės reputacijos sąvoką, analizuojant ne tik teisės, bet ir kitų socialinių mokslų kontekste. Buvo prieita prie išvados, kad Lietuvos teisėje juridinio asmens dalykinė reputacija yra siejama su nematerialiuoju turtu ir ieškovai, norėdami sėkmingai apginti savo dalykinę reputaciją, turi įrodyti realų faktinį jos sumenkėjimą. Antroji darbo dalis buvo skirta išanalizuoti visas galimas dalykinės reputacijos gynimo procedūras ir būdus. Jų yra įvairių, todėl juridiniai asmenys gali pasirinkti jiems priimtiniausią ir efektyviausią gynybos būdą. Trečiojoje dalyje buvo nagrinėjamas juridinio asmens dalykinės reputacijos ir saviraiškos laisvės santykis. Buvo siekiama atskleisti problemas ir galimus sprendimus ieškant šių vertybių balanso. Ketvirtoji dalis skirta išanalizuoti neturtinės žalos kompensavimo galimybę pažeidus juridinio asmens dalykinę reputaciją ir kylančias problemas. Šiame darbe buvo analizuojamas juridinio asmens dalykinės reputacijos ir teisės į jos apsaugą reglamentavimas ir detaliai nagrinėjamas praktinis įgyvendinimas.
This paper analyses protection of corporate reputation and it‘s regulation, practical implementation and the main problems. In the first part it is discussed the concept of corporate reputation in law as well as other social sciences. The conclusion is that corporate reputation is an intangible property and if the claimants want to succeed in defending their corporate reputation, the real factual harm must be proven. In the second part it is analysed all the possible procedures and ways to defend corporate reputation. The are various possibilities to protect corporate reputation and legal entities may choose the most reasonable and effective one. In the third part it was discussed the relation between corporate reputation and freedom of self-expression. The aim was to reveal problems and possible solutions to find the balance between them. In the last part it was analysed possibilities to compensate non-pecuniary damages when corporate reputation is damaged. It was also revealed the main problems. This paper thoroughly analysed regulation of protection of corporate reputation as well as implementation in practise.

L’elaborato tratta il delicato tema della legittima difesa esercitata nel domicilio, che è stato oggetto di due riforme negli ultimi quindici anni – prima nel 2006, poi nel 2019 –, suscitando diffuse critiche e contrastanti pareri in ordine alla sua esatta portata. La grande attenzione pubblica per l’istituto e i due interventi legislativi hanno stimolato l’interesse e il desiderio di approfondire l’origine, la ratio e l’evoluzione della scriminante di cui all’art. 52 c.p. Lo scopo della presente indagine è duplice: da una parte, si è cercato di comprendere le esigenze sottostanti alle riforme e, più in generale, il fondamento del bisogno così ben radicato nella società contemporanea di una differenziazione di trattamento per le aggressioni perpetrate all’interno dell’abitazione; dall’altra, invece, partendo dallo studio della disciplina attualmente in vigore e dell’applicazione concreta della medesima ad opera della giurisprudenza, si è provato a trovare un equilibrio più soddisfacente tra le esigenze diffuse e il rispetto della Carta costituzionale e della Convenzione europea dei diritti dell’uomo, in sintesi una “contro-riforma sostenibile”. La tesi si articola in tre parti, di cui la prima è dedicata all’analisi storico-comparatistica della causa di giustificazione. In particolare, lo studio ripercorre le origini dell’istituto a partire dal diritto romano sino ai giorni nostri, cercando di evidenziare i precedenti storici atti a spiegare l’attuale predisposizione di una figura speciale di legittima difesa a beneficio di colui che sia aggredito in luoghi privati in ordine ai quali vanti uno ius excludendi alios nei confronti dell’aggressore. La ricerca storica è affiancata da un’indagine comparatistica, anch’essa impostata in prospettiva storica, che allarga lo sguardo alle scelte compiute in argomento dai principali ordinamenti europei – segnatamente quello francese e inglese –, nonché dal sistema federale statunitense. La seconda parte della tesi ha ad oggetto il diritto interno vigente; in particolare l’elaborato affronta prima la legge n. 59 del 13 febbraio 2006 e poi la legge n. 36 del 26 aprile 2019, ossia le riforme che hanno conferito rilievo alla figura speciale della legittima difesa domiciliare. A tal fine, si considera tanto il contesto politico criminale che ne ha segnato l’origine, quanto il contenuto delle riforme alla luce della giurisprudenza di legittimità; è stato infatti svolto uno studio su tutte le pronunce emesse dalla Corte di Cassazione in materia di legittima difesa domiciliare dal 1° gennaio 2000 sino al 1° gennaio 2021. Grazie a tale ricerca è emerso da una parte come la prima riforma risulti sostanzialmente priva di ricadute concrete e, dall’altra, come il secondo intervento legislativo, ove non sottoposto a un’interpretazione correttiva alla luce delle direttrici costituzionali e convenzionali europee, sia pericoloso per la tenuta del sistema. Lungo tale direttrice, l’indagine si sofferma in particolare sul ruolo che dovrebbero assumere il requisito della necessità e le presunzioni normative di legittimità della reazione. Con riferimento al caso dell’eccesso, poi, si prospettano i criteri rilevatori del grave turbamento e delle condizioni di minorata difesa a cui si ricollegano effetti scusanti. La terza ed ultima parte dell’elaborato, infine, tratta l’istituto in una prospettiva de iure condendo; nello specifico, prendendo le mosse dai risultati raggiunti attraverso l’indagine realizzata, si è provato ad avanzare una proposta di risistemazione della causa di giustificazione che si articola in tre passaggi, idealmente collegati tra loro. Secondo tale ipotesi di lavoro, l’art. 52 c.p. guadagnerebbe in razionalità ed efficacia se, anzitutto, fossero eliminati i commi disciplinanti la legittima difesa domiciliare attualmente in vigore; inoltre, alla disposizione di cui al c. 1 dell’art. 52 c.p. dovrebbe affiancarsi una scusante legata allo stato di turbamento emotivo vissuto dall’aggredito, applicabile alla fattispecie generale per i casi di eccesso e di errore sulla legittima difesa; infine, si potrebbe prevedere una presunzione iuris tantum di pericolo attuale per la sola incolumità dei presenti in caso di aggressione perpetrata all’interno del domicilio e dell’esercizio commerciale. La compresenza di tali proposte modificative sembrerebbe in grado di conferire un rinnovato equilibrio alla causa di giustificazione, da una parte dando voce e riconoscimento alle istanze diffuse, dall’altra rispettando i principi e i valori di cui la Costituzione e la Convezione europea dei diritti dell’uomo sono espressione, dall’altra ancora imprimendo una spinta contraria rispetto all’attuale tendenza antistatalista, se non addirittura anticostituzionale, di cui le due recenti riforme in materia si sono rese portavoce.
The thesis deals with the delicate issue of self defence exercised in the home, which has been the subject of two reforms in the last fifteen years – first in 2006, then in 2019 –, arousing widespread criticism and conflicting opinions regarding its exact scope. The great public attention for the institute and the two legislative interventions have stimulated the interest and the desire to investigate the origin, the ratio and the evolution of the justification regulated by art. 52 c.p. The purpose of this survey is twofold: on the one hand, an attempt has been made to understand the needs underlying the reforms and, more generally, the foundation of the need so well rooted in contemporary society for a differentiation of treatment for attacks perpetrated inside the house; on the other hand, starting from the study of the discipline currently in force and the concrete application of the same by jurisprudence, an attempt has been made to find a more satisfactory balance between the widespread needs and compliance with the Constitutional Charter and the European Convention of human rights, in short a "sustainable counter-reform". The thesis is divided into three parts, of which the first is dedicated to the historical-comparative analysis of the justification. In particular, the study traces the origins of the institute starting from Roman law up to the present day, trying to highlight the historical precedents capable of explaining the current predisposition of a special figure of self defence in favour of anyone who is attacked in private places, where individuals boasts an ius excludendi alios against the aggressor. The historical research is accompanied by a comparative survey, also set in a historical perspective, which broadens the gaze to the choices made on the subject by the main European systems – notably the French and English ones –, as well as by the US federal system. The second part of the thesis concerns the internal law in force; in particular, the paper first deals with law no. 59 of 13 February 2006 and then the law n. 36 of 26 April 2019, i.e. the reforms that have given prominence to the special figure of home self defence. To this end, both the criminal political context that marked its origin and the content of the reforms in the light of the jurisprudence of legitimacy are considered; in fact, a study was carried out on all the rulings issued by the Court of Cassation regarding home self defence from 1 January 2000 until 1 January 2021. Thanks to this research, it emerged on the one hand how the first reform is substantially devoid of concrete repercussions and, on the other hand, how the second legislative intervention, if not subjected to a corrective interpretation in the light of constitutional and conventional guidelines, is dangerous for system tightness. Along this line, the investigation focuses in particular on the role that the requirement of necessity and the normative presumptions of legitimacy of the reaction should assume. With reference to the case of excess, then, are presented the criteria for detecting the serious disturbance and the conditions of impaired defence to which excuse effects are linked. Finally, the third and last part of the paper deals with the institution from a de iure condendo perspective; specifically, starting from the results achieved through the survey carried out, an attempt was made to put forward a proposal for reorganization of the justification which is divided into three steps, ideally connected to each other. According to this working hypothesis, art. 52 c.p. would gain rationality and effectiveness if, first of all, the paragraphs governing home self defence currently in force were eliminated; furthermore, beside the provision referred to art. 52 c. 1 c.p., there should be an excuse linked to the state of emotional disturbance experienced by the attacked, applicable in cases of excess and error in self defence; finally, an iuris tantum presumption of current danger could be envisaged for the sole safety of those present in the event of aggression perpetrated within the home and business. The coexistence of these amending proposals would seem capable of giving a renewed balance to the justification, first of all giving voice and recognition to the widespread requests, furthermore respecting the principles and values of which the Constitution and the European Convention of human rights are an expression, and lastly still giving a push contrary to the current anti-statist tendency, if not even anti-constitutional, of which the two recent reforms on the subject have become spokesmen.

Tous les États sans discrimination ont un droit inaliénable de développer les utilisations de l'énergie nucléaire à des fins civiles, à condition de ne pas détourner ces utilisations pacifiques vers des armes nucléaires. Cependant, il est accordé à cinq pays le droit de posséder ces armes, à savoir les États-Unis, la France, la Russie, la Chine et le Royaume-Uni. Autour de cette position, un vif débat à la fois juridique et éthique a été soulevé. En effet, pour ses opposants, le nucléaire représente un risque durable et non maîtrisable par la science. Les accidents nucléaires majeurs, les déchets radioactifs et le détournement du nucléaire à des fins militaires sont des risques ingérables et d‟une gravité exceptionnelle. En revanche, les défenseurs de cette énergie la présentent comme sûre, voire partie prenante du développement durable. Selon eux, le nucléaire est un moyen fiable de lutter contre le réchauffement climatique et aussi une solution à la pénurie énergétique à laquelle le monde est confronté. En examinant et analysant la fiabilité et la crédibilité de tous les arguments allant à l‟encontre et en faveur de cette industrie, on constate que la licéité et la légitimité du recours à l'énergie nucléaire sont mal fondées. Par conséquent, nous estimons qu‟il est nécessaire de dépasser le nucléaire par la conclusion d'une convention internationale posant l'interdiction progressive mais complète du nucléaire
All states without discrimination have an inalienable right to develop the uses of nuclear energy for civilian purposes, provided they do not divert these peaceful uses to nuclear weapons. However, five states have been granted the right to possess these weapons, that is : United-States, France, Russia, China and United-Kingdom. Around this position a fierce debate, both legal and ethical, has been raised. Indeed for its opponents nuclear represents a persistent risk that is non controllable by science. Major nuclear accidents, radioactive wastes and the use of nuclear for military purposes are unmanageable risks of exceptionnal serious gravity. On the other hand, the proponents of this energy present it as safe, even as part of sustainable development. According to them, nuclear is a reliable means to fight global warming and is also a solution to the energy shortage the world is facing. When analyzing the reliability and the credibility of all arguments for and against this industry, it can be noticed that the lawfulness and legitimacy of the use of nuclear energy are ill-founded. Therefore, we believe there is a need to go beyond nuclear with the conclusion of an international convention dealing with the progressive but comprehensive nuclear ban

La première partie de l’étude est consacrée à l’invocation, intra et extra muros, du droit à un procès équitable. Sont analysés ainsi, dans un premier temps, l’applicabilité directe de l’article 6 et la subsidiarité de la Convention par rapport au droit national et de la Cour Européenne des Droits de l’Homme par rapport aux juridictions nationales. Le droit à un procès équitable étant un droit jurisprudentiel, l’étude se focalise, dans un second temps, sur l’invocabilité des arrêts de la Cour Européenne et plus précisément sur l’invocabilité directe de l’arrêt qui constate une violation du droit à un procès équitable dans une affaire mettant en cause l’Etat et l’invocabilité de l’interprétation conforme à l’arrêt qui interprète l’article 6 dans une affaire mettant en cause un Etat tiers. L’introduction dans l’ordre juridique français et hellénique de la possibilité de réexamen de la décision pénale définitive rendue en violation de la Convention a fait naitre un nouveau droit d’accès à la Cour de cassation lequel trouve son terrain de prédilection aux violations de l’article 6 et constitue peut-être le pas le plus important pour le respect du droit à un procès équitable après l’acceptation (par la France et la Grèce) du droit de recours individuel. Quant au faible fondement de l’autorité de la chose interprétée par la Cour Européenne, qui est d’ailleurs un concept d’origine communautaire, cela explique pourquoi un dialogue indirect entre la Cour Européenne et la Cour de cassation est possible sans pour autant changer en rien l’invocabilité de l’interprétation conforme et le fait que l’existence d’un précédent oblige la Cour de cassation à motiver l’interprétation divergente qu’elle a adoptée.La seconde partie de l’étude, qui est plus volumineuse, est consacrée aux garanties de bonne administration de la justice (article 6§1), à la présomption d’innocence (article 6§2), aux droits qui trouvent leur fondement conventionnel dans l’article 6§1 mais leur fondement logique dans la présomption d’innocence et aux droits de la défense (article 6§3). Sont ainsi analysés le droit à un tribunal indépendant, impartial et établi par la loi, le délai raisonnable, le principe de l’égalité des armes, le droit à une procédure contradictoire, le droit de la défense d’avoir la parole en dernier, la publicité de l’audience et du prononcé des jugements et arrêts, l’obligation de motivation des décisions, la présomption d’innocence, dans sa dimension procédurale et personnelle, le « droit au mensonge », le droit de l’accusé de se taire et de ne pas contribuer à son auto-incrimination, son droit d’être informé de la nature et de la cause de l’accusation et de la requalification envisagée des faits, son droit au temps et aux facilités nécessaires à la préparation de la défense, y compris notamment la confidentialité de ses communications avec son avocat et le droit d’accès au dossier, son droit de comparaître en personne au procès, le droit de la défense avec ou sans l’assistance d’un avocat, le droit de l’accusé d’être représenté en son absence par son avocat, le droit à l’assistance gratuite d’un avocat lorsque la situation économique de l’accusé ne permet pas le recours à l’assistance d’un avocat mais les intérêts de la justice l’exigent, le droit d’interroger ou faire interroger les témoins à charge et d’obtenir la convocation et l’interrogation des témoins à décharge dans les mêmes conditions que les témoins à charge et le droit à l’interprétation et à la traduction des pièces essentielles du dossier. L’analyse est basée sur la jurisprudence strasbourgeoise et centrée sur la position qu’adoptent la Cour de cassation française et l’Aréopage
The first party of the study is dedicated to the invocation of the right to a fair trial intra and extra muros and, on this basis, it focuses on the direct applicability of Article 6 and the subsidiarity of the Convention and of the European Court of Human Rights. Because of the fact that the right to a fair trial is a ‘‘judge-made law’’, the study also focuses on the invocability of the judgments of the European Court and more precisely on the direct invocability of the European Court’s judgment finding that there has been a violation of the Convention and on the request for an interpretation in accordance with the European Court’s decisions. The possibility of reviewing the criminal judgment made in violation of the Convention has generated a new right of access to the Court of cassation which particularly concerns the violations of the right to a fair trial and is probably the most important step for the respect of the right to a fair trial after enabling the right of individual petition. As for the weak conventional basis of the authority of res interpretata (“autorité de la chose interprétée”), this fact explains why an indirect dialogue between the ECHR and the Court of cassation is possible but doesn’t affect the applicant’s right to request an interpretation in accordance with the Court’s decisions and the duty of the Court of cassation to explain why it has decided to depart from the (non-binding) precedent.The second party of the study is bigger than the first one and is dedicated to the guarantees of the proper administration of justice (Article 6§1), the presumption of innocence (Article 6§2), the rights which find their conventional basis on the Article 6§1 but their logical explanation to the presumption of innocence and the rights of defence (Article 6§3). More precisely, the second party of the study is analyzing the right to an independent and impartial tribunal established by law, the right to a hearing within a reasonable time, the principle of equality of arms, the right to adversarial proceedings, the right of the defence to the last word, the right to a public hearing and a public pronouncement of the judgement, the judge’s duty to state the reasons for his decision, the presumption of innocence, in both its procedural and personal dimensions, the accused’s right to lie, his right to remain silent, his right against self-incrimination, his right to be informed of the nature and the cause of the accusation and the potential re-characterisation of the facts, his right to have adequate time and facilities for the preparation of the defence, including in particular the access to the case-file and the free and confidential communication with his lawyer, his right to appear in person at the trial, his right to defend either in person or through legal assistance, his right to be represented by his counsel, his right to free legal aid if he hasn’t sufficient means to pay for legal assistance but the interests of justice so require, his right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him and his right to the free assistance of an interpreter and to the translation of the key documents. The analysis is based on the decisions of the European Court of Human Rights and focuses on the position taken by the French and the Greek Court of Cassation (Areopagus) on each one of the above mentioned rights

碩士
國立中正大學
法律所
94
This thesis plans to analyze, first, whether the Anticipatory Self-Defense right in the traditional international law and modern international law (under pointing the United Nation Charter system particularly) exists to the legitimacy and necessity in the use guidelines of military force,. If in order to affirm the opinion, based on existence of the Anticipatory Self-Defense right again, to analyze whether U.S.A. accord with the composition important framework of 'the Anticipatory Self-Defense right in 2003 military action against Iraq, in order to prevent the origin of an incident that the proper military force uses in international law from being abused excessively.

The legality of pre-emptive self-defence The Master's thesis deals with one of the key issues of current international law, the right to pre-emptive self-defence. The work is divided into six parts, including introduction, four chapters and conclusion. After an introductory part the first chapter deals with the sources of international laws regulating the right to self-defence, their system and the way in which they interact with each other. This chapter seeks to analyse the impact of those sources on the development of right to pre-emptive self-defence. The main attention is devoted to the primary and secondary sources of international law regulating the right to self-defence, such as the U.N. Charter, customary international law, the judicial decisions of the International Court of Justice and the teachings of the most highly qualified publicists. The second chapter first focuses on the concept of classical self-defence. It then goes on to examine the two traditional doctrinal approaches to the interpretation of the scope of the right to self-defence, the restrictive school of thoughts and the extensive school of thoughts. The next chapter relates to the prohibition of the use of force under international law. The last chapter first analyses the concept of pre-emptive self-defence from the...

This research examines the legal issues surrounding killing in defence of property in three selected jurisdictions: South Africa, Cameroon and the United States. The comparative analysis illustrates that although the right to protect one’s property is universal, this defence is interpreted differently in the various jurisdictions. Another issue considered in the study is the constitutional right to life in each jurisdiction and whether or not an unlawful attack against one’s property creates a legal entitlement for the attacked party to take the life of another in defence of his or her property. Private defence of property is available when a person uses force to defend an interest in property, for example; to prevent a would-be thief from taking his own, or another’s property, to prevent someone from damaging his own or another’s property, to prevent an intruder from entering his own or another’s property. When an accused pleads private defence, his claim is that his harm-causing conduct was, in the circumstances, lawful. The reasonable use of force (short of deadly force) in the private defence of property is not disputed. However, the use of deadly force in protection of property is controversial, especially in a constitutional state such as South Africa where life should be prized above property. One should however also consider that there is a close link between the private defence of defending life and of protecting property. In many cases, an assault on property also involves a threat on life. However, there are cases of private defence of property where no threat to bodily integrity exists. These situations will be examined in all three jurisdictions and measured against the various constitutional imperatives. Conclusions and recommendations are made as regards the legal framework on the defence of property in the criminal law of the various jurisdictions.
Criminal and Procedural Law
LL. M.

The focus of the thesis is set on the controversial issues connected with a legal institute of Czech criminal law called "self-defence", and how these controversial issues were dealt with within judicial practice. The first chapter serves as an introduction to the whole topic. The second chapter describes the concept of self-defence, as well as its prerequisites. The self- defence was classed into the system of criminal law. The goal of the third chapter is to define preconditions which are necessary in connection with application of the self-defence institute. The main parts of this chapter describe firstly attacking, first of all and secondly defence. Subsections of this chapter analyse the term of attacking itself, the attacker and his characteristics, the term of harmfulness of such attacks towards society. As for the second part of the third chapter it focuses on the defence itself, its proportionality etc. The fourth chapter is about the role of judicial practice within the context of Czech legal system. This chapter serves as a relevant contribution to the main part of the thesis, which is chapter five. Chapter five introduces specific cases, especially those which were at some point controversial. The specific case is briefly described and the controversial issue is named and further...

The legal figure of prohibition of threat of force contained in article 2(4), the pillar of the UN Charter has been purposed neglected by the legal system and the legal literature which resulted in the instability of the legal system feed by the assumption that norm does not reflect the reality: threats are a mundane instrument of international policy. With a combination of the fragments of jurisprudence regarding this figure and the little and polarized legal literature, the concept and scope of the prohibition can be defined and the couple of threat and use of force is establish. From this assessment the legal status of the figure unveils, and the test of its peremptory status is compared with the new ICL reports on the matter. The attempt of the creation of a clear framework for threats in self-defence reveals that the lack of use of this figure results from the myths among States and the reality that in case of empty threats or cases where the figure materializes into actual use of force poses no danger. As a result, the study unveils the inconsistencies in practice and how this innocuous neglect is jeopardizing the entire legal system and the way States behave.
A figura jurídica da proibição da ameaça de força contida no artigo 2º (4), pilar da Carta das Nações Unidas, tem sido negligenciada pelo ordenamento jurídico e pela literatura jurídica, o que resultou na instabilidade do ordenamento jurídico alimentado pela presunção de que a norma não reflete a realidade: as ameaças são um instrumento mundano da política internacional. Com uma combinação dos fragmentos da jurisprudência a respeito dessa figura e a pouca e polarizada literatura jurídica, o conceito e o escopo da proibição podem ser definidos e a interligação entre a ameaça e uso da força é estabelecido. A partir dessa avaliação, o estatuto jurídico da figura é determinado e comparado com os novos relatórios do ICL relativamente a normas peremptórias. A tentativa de criação de um quadro para as ameaças em legítima defesa demonstra que a não utilização desta figura resulta dos mitos entre os Estados e da realidade que em caso de ameaças vazias ou casos em que a figura se materializa em uso efetivo da força, esta não representa perigo. Como resultado, o estudo desvenda as inconsistências na prática e como essa negligência inócua está de facto a prejudicar todo o sistema jurídico internacional e influenciar o comportamento dos Estados.

In 2014, the Crimes Act 1958 (Vic) was reformed by the enactment of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) to abolish the offence of defensive homicide. It was in part replaced by a redrafted provision on self-defence to better accommodate responses to family violence and supplemented by family violence jury directions within the Jury Directions Act 2015 (Vic). These reforms were intended to help juries better assess self-defence in a family violence context so that where the actions of a victim of family violence were genuine and reasonable in the circumstances as the victim perceived them, they would be acquitted altogether. Although the reforms sought to respond to long-standing criticisms that the law of self-defence had failed to adequately accommodate victims of family violence, the 2016 Victorian Royal Commission into Family Violence nevertheless found that the State of Victoria was inadequately responding to the social harm caused by family violence. To ascertain if the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) and amendments to the Jury Directions Act 2015 (Vic) had given victims of family violence who killed their violent partners greater access to self-defence, eight prosecutions heard pursuant to the former law of self-defence under the Crimes (Homicide) Act 2005 (Vic) were analysed using John Rawls’ theory of justice. The analysis revealed 14 examples of imperfect procedural justice which resulted in no women successfully accessing self-defence despite cogent evidence being available. Three relevant prosecutions heard pursuant to the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) were also analysed. The analysis revealed an acquittal, a discontinuance and one instance of imperfect procedural justice which suggested that access to self-defence had increased. 12 stakeholders in the criminal justice system were interviewed to probe why these injustices had occurred and whether the current law could be argued to have increased the accessibility of self-defence to victims of family violence. On the former law, the data identified problems including: the provision of dated legal advice; overzealous prosecutions; victims feeling so remorseful that they pleaded guilty despite self-defence being available; defence counsel not raising the family violence self-defence provisions at trial; the complexity of the law and jury instructions. On the current law, the interviews indicated that the accessibility of self-defence had increased due to the revised test for self-defence, Victoria’s new family violence jury directions, increased judicial and professional receptivity and the simplification of the law. However, professional pressures remained in the realm of plea negotiations; pressures continuing to pose foreseeable risks of imperfect procedural justice. Specifically, the abolition of defensive homicide and the charging practices of the Office of Public Prosecutions were identified to have, at times, perpetuated the pressure on victims of family violence to plead guilty to lesser offences despite the existence of cogent evidence of self-defence. Matters were recommended, including, inter alia: the provision of a brief to the Victorian Law Reform Commission and Department of Justice to review the operation of the legislation to ensure that the legislation consistently achieves its objectives. Further, that the prosecution policy of the Office of Public Prosecutions concerning its discretion to prosecute be amended to contain a comprehensive policy informing the prosecutions of victims of family violence with viable claims to self-defence.

The defence of self-defence, like much of the common law, has strongly male-centric origins and emphases. Judges and juries have little difficulty understanding the theory of the case presented to them by defence counsel when self-defence is argued to have been necessary as a result of an attack by a stranger or after a bar brawl. It is argued that what is conceptually more difficult for jurors is the application of the defence of self-defence in circumstances where an alleged perpetrator of an assault or homicide does so in circumstances of intimate partner violence, and that this is particularly exacerbated in circumstances where the victim and the alleged offender are of the same gender. The last two decades have witnessed a great deal of advocacy and law reform inquiry addressed towards improving the response of the criminal justice system to killings committed by battered individuals who kill their intimate partners. Most of the developments in the area have focused on the heterosexual female victim of spousal or partner abuse, the so-called ‘battered woman’. Since 1991, in an attempt to alleviate the difficulties that the gender-biased defence of self-defence poses to battered women, expert evidence in Battered Woman Syndrome (‘BWS’)—a model of intimate violence developed during the 1970s to explain the experience and conduct of female victims of abusive heterosexual relationships—has been admissible during trials in Australia of battered heterosexual women for the killing of their intimate batterers. With the increasing utilisation of expert evidence in BWS, judges and jurors are becoming more exposed to arguably legal justifications for violent behaviour that would otherwise be considered irrational and criminal conduct. However, the gendered focus of BWS results in significant barriers for battered gay and lesbian individuals who kill their intimate partners in self-defence. Simply, the conceptualisation of intimate partner violence, as proposed by BWS, is heterosexist. Accordingly, the combination of the law of self-defence and BWS does not adequately take into account the exclusive particularities and unique dynamics of same-sex intimate violence. It is argued that the responses of alleged perpetrators in killing their same-sex partners may be the only reasonable response. This thesis argues that the current law of self-defence in New South Wales, at common law and under statute, is inadequate for gay and lesbian defendants who have been in violent intimate partner relationships. Although legislative amendments in New South Wales have offered the potential for better understanding self-defence used by battered individuals generally, the lack of knowledge that jurors may have regarding intimate violence in same-sex relationships, coupled with the homophobic and heterosexist attitudes held by many, may preclude these alleged offenders from using the defence of self-defence successfully. This thesis suggests that in order to provide a more just trial for these alleged offenders one of two options must be undertaken. First, instead of requiring defendants to rely on the inappropriate BWS, to allow the use of a gender-neutral theory of intimate violence. Second, to modify the law of self-defence so that it better reflects the circumstances of all victims of intimate partner violence who kill their batterers.

Le crime d'agression se veut etre un des quatre crimes internationaux sous la juridiction de la CPI. Lorsque les delegues a la Conference de Rome n'eurent point atteint de consensus sur une definition du crime, celui-ci resta, depuis, indefini en droit. En consequence, la CPI n'aura juridiction pour entendre des causes portant sur le crime d'agression qu'une fois la definition sera adoptee par l'Assemblee des Etats Parties au plus tot en 2009. Ce memoire traite trois problematiques liees au crime d'agression : la question de la responsabilite penale individuelle, le role du Conseil de securite de l'ONU, et les parametres du crime en tant que tel. La responsabilite penale individuelle est analysee, inter alia, du point de vue du principe des sources du droit international. Quant al'eventuelle implication du Conseil de securite dans le champ de competence de la CPI sur le crime d'agression, l'auteure soutient tel que suit: Si le Conseil de securite se voit accorde un pouvoir plus large que celui dont il est presentement dote en vertu des articles 13(b) et 16 du Statut de Rome, chaque membre permanent aura un veto sur toute situation d'agression qui serait autrement portee devant la Cour. Ceci aura pour consequence de politiser la CPI en ce qui a trait au crime et rendra hypothethique toute definition eventuelle. Si la definition est bien con9ue et redigee, on fait valoir, qu'il n' est point necessaire de limiter davantage la competence de la CPI. Les parametres de la definition du crime proposes par l'auteure sont etablis selon les conclusions d'une analyse des notions composantes de l'agression. L'essentiel du concept se veut un recours illegal et non-necessaire qui constitue une rupture ala paix. Amoins qu'il ne soit exerce en « legitime defence» ou en vertu d'un mandat du Chapitre VII, Ie recours ala force constitue prima facie une agression et s'il est suffisamment grave, il s'agira d'un crime d'agression. Ce memoire termine avec un projet de definition du crime d'agression en vue d'avancer Ie discours vers un consensus sur ces problematiques majeures. Non seulement est-il possible d'arriver aun consensus sur la definition, croit l'auteure, mais nous sommes plus que jamais al'aube d'y parvenir.
The crime of aggression is one of the four international crimes under the jurisdiction of the ICC. When delegates at the Rome Conference were unable to agree on the content of a definition, the crime was left undefined. As a result, the ICC can only begin prosecuting individuals for the crime of aggression once a definition is adopted by the Assembly of States Parties in 2009, at the earliest. This thesis examines three issues associated with the crime of aggression: the question of individual criminal responsibility, the role of the UN Security Council and the general scope of the definition of the crime of aggression itself Individual criminal liability is reviewed, inter alia, from the perspective of international sources doctrine. Regarding the role of the Security Council in relation to the crime of aggression, the author concludes: if the Security Council is vested with more powers than it already has under Articles 13(b) and 16 of the Rome Statute, each permanent member will have a veto over any situation of aggression that might otherwise be brought before the Court. This would result in a complete politicization of the ICC and render moot any future definition of the crime of aggression. If a definition for the crime of aggression is properly conceived and constructed, it is argued, there is no need to further limit the Court's exercise of jurisdiction. The author proposes general parameters for the scope ofthe definition based on conclusions reached in the analysis of the conceptual components of aggression. At its essence, the act of aggression is the unnecessary, unlawful use of force which constitutes a breach ofthe peace. Unless employed in "self-defence" or under a Chapter VII mandate, the use offorce constitutes prima facie an act of aggression, and if it is sufficiently grave, a crime ofaggression. This thesis concludes with a working definition ofthe crime of aggression to promote dialogue and ultimately a consensus on these core issues. Not only is a definition is within reach, the author believes, we are closer to it than we ever have been before.
"Mémoire présenté à la Faculté des Études supérieures en vue de l'obtention du grade de LL.M. en Maîtrise en droit Option recherche"

As it is evident from the title, in my thesis I would like to provide an overview of the undertakings' procedural rights in proceedings under Article 101 and/or 102 of the Treaty on the Functioning of the European Union. Given the extensive investigative powers that are granted to the European Commission by the Council Regulation No 1/2003 and the consequences of being found guilty of violating Article 101 and/or 102 of the TFEU, it is necessary to ensure that the undertakings have enough ways available to exercise their right to defence and other rights and privileges guaranteed by the EU law and international treaties such as European Convention on Human Rights (e.g. the right to respect for private life). For this reason the EU law provides a range of procedural rights that should guarantee that both all the fundamental rights are observed and also serve as a system of checks and balances that prevents the misuse of the Commission's investigative powers. My thesis will focus individual rights of undertakings that are provided to them by the Council Regulation No 1/2003 and EU courts judicature. I will analyse their scope and purpose, the conditions under which they can be exercised and their limitations. Simultaneously a comparison between the rights of undertakings in the EU and U.S. legal system will...