Browsing by Author "Powell, Cathleen"

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    An analysis of the choice and use of weapons by Russia and Georgia in the 2008 South Ossetia conflict
    (2016) Watzlawick, Annatina; Powell, Cathleen
    In this minor dissertation, the use and choice of weapons employed during the armed conflict between Georgia and Russia in 2008 over South Ossetia will be analysed. Due to the fact that cluster munitions were used by both parties, and that they are a controversial weapon with regard the principles regulating the use and choice of weapons, section I of this dissertation will focus on them and their regulation in international law. Section II will focus on the facts concerning the 2008 conflict over and South Ossetia. Section III will look at the international humanitarian laws applicable and relevant to this dissertation. In sections IV, V, and VI arguments will be raised in order to attribute violations of international humanitarian law to Georgia, while countering foreseeable arguments which could be invoked against Russia. This dissertation will therefore only analyse the provisions when they are pertinent to that aim. The desired outcome of proceeding in such a manner is that since both the viewpoints of the claimant and the defendant will be analysed, an extended and well-rounded view on the law, its interpretation, controversies, opinions of established scholars and jurisprudence, will be given. The relevant principles relating to the use and choice of weapons which will be analysed are: the principle of discrimination (section IV), the principle of proportionality (section V), as well as the prohibition to cause superfluous harm (section VI). Certain specific issues such as human shields will also be looked at in the analysis of a particular attack. In the analysis of this conflict, both well-established arguments, as well as controversial or disputed ones, will be presented in order to support either side. This analysis will argue that Georgia violated international humanitarian law, while defending Russia's conduct, however, the arguments presented will remain coherent and not contradict each other. This paper's scope will be limited to analysing attacks which are sufficiently documented and imply a problem of use and choice of weapons; as opposed to the ones which solely purport an issue of military objective and were hit by a precise missile. Indeed, this dissertation focuses more on controversial weapons and whether they violate international humanitarian law solely by their inherent nature, that is, the mere choice of using them would be in violation of the law; or by their specific use in the attack. The four attacks analysed will allow an in depth analysis of the different aspects that the use and choice of weapons can entail; the 2 dissertation will therefore be limited to them and any further attack which do not bring to light any new arguments will not be investigated. The attacks which will be examined in the context of the conflict over South Ossetia occurred both in South Ossetia as well as non-disputed Georgian territory. These are: the one launched by Georgia using BM-21 Grads multiple rocket launchers on Tskhinvali and surrounding villages lasting from the night of the 7th of August until some point during the day of the 8th of August;1 the 9th of August attack where Georgia employed Mk-4 cluster munition rockets containing M85 submunitions over Gori district villages, the Roki tunnel and according to a witness, Dzara Road2; Russia's attack on Gori city on the 12th of August using an Iskander-M SS-26 cluster munition missile;3 as well as the firing of a few missiles on a school in Gori city by the Russian air force on the 9th of August.4 The entirety of the facts pertaining to the conflict are drawn from the report on the conflict carried out by Human Rights Watch entitled 'Up in Flames'.5 The analysis of the relevant provisions will proceed as follows: the rules will be analysed one by one, following the general introduction to the rule, general statements regarding its interpretation and application, the law will then be applied to the different attacks, given that enough facts are provided and that it pertains to the aim of the dissertation. If there are specific interpretations or applications of the law which are only relevant to one attack, it will be mentioned directly under said attack.
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    Analysis of the possibility of, and challenges associated with, the qualification for refugee status of victims of human trafficking in South Africa
    (2011) De Souza, Monica; Powell, Cathleen
    The aim of the enquiry is to establish whether trafficking victims could find protection within a particular human rights framework - that of refugee law - and to assess any factors that may hinder qualification for such protection.
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    The application of Jus in Bello to indiscriminate attacks in non-international armed conflicts
    (2014) Barasa, Bernard Otieno; Powell, Cathleen
    This thesis examines the prohibition of indiscriminate attacks in non-international armed conflicts. The world has seen an increase in the number of armed conflicts that are not of an international character. Most of these conflicts have proven to be very destructive and detrimental to persons not taking part in the hostilities. Having in mind the fact that International Humanitarian Law seeks to protect persons not taking part in armed conflicts, this thesis is an appraisal of whether International Humanitarian Law prohibits indiscriminate attacks in non-international armed conflicts.
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    Blackwater versus Blackbeard : which international regulations exist for the use of private maritime security companies in vessel protection operations?
    (2016) Wirtz, Christian Cornelius; Powell, Cathleen
    The problem of piracy and armed robbery at sea has sharply risen in the last decades. As a result, shipping companies, governments, insurances and maritime organisations have tried to approach the problem in different ways, the employment of private maritime security companies being one of them. State navies do not have enough resources to cover the vast areas of the high seas. As a result, armed security teams are exercising traditional State functions to protect vessels from being attacked. This study aims to find the legal foundations in international public law for the employment of armed guards on-board of commercial or private vessels. Furthermore, legal questions about the seizing of pirates, the use of force, criminal jurisdiction on-board of ships and the carrying of weapons will be scrutinized. For this purpose, the applicability of the Geneva Conventions and other key documents of the international humanitarian law will be analysed such as the Montreux Document and the Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies. Moreover, relevant aspects of the UNCLOS rules will be highlighted. An additional chapter will review existing international and regional soft law standards, mainly developed by the shipping and the security industry. The analysis concludes that international law has not yet developed distinct rules for the use of private maritime security companies. Especially the UNCLOS does not deal with private actors in the fight against piracy at all. As a result, national law remains responsible for the creation of a comprehensive set of rules concerning the employment and the conduct of maritime security guards. In addition, the vast number of soft law guidance and standards are missing enforceable and effective mechanisms and cannot yet be seen as an alternative for national regulations.
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    Constitutional limits on the application of the political question doctrine: a study of Kenya, South Africa and Ghana
    (2025) Ongudi, Ronald; Powell, Cathleen
    Political branches are increasingly coming under the scrutiny of the judiciary under the now widely embraced principle of constitutional supremacy. What was a call to complete abstention in the face of political questions has been replaced with a call for the constitutional review of political questions as judges continue to embrace their guardianship role over the Constitution. The principle of constitutional supremacy allows judges to intrude into terrain hitherto reserved for political branches. Intrusions, by their very nature, can be disruptive and often result in claims of judicial overreach. Over time, the judiciary has been urged to exercise deference to cure the claim of overreaching. However, principled approaches have yet to be proffered to guide the institution in the deference to employ when reviewing political questions for their constitutionality. This study fills the gap by offering a principled approach to reviewing political questions for their constitutionality. It does this through a comparative study of three jurisdictions that have codified the principle of constitutional supremacy. The study reveals that intrusions are mandated by the Constitution itself, and it therefore also reveals the need to create a distinction between constitutionally permissible and impermissible intrusions. The study finds that a constitutionally permissible intrusion results when courts interpret their institutional authority and the text of the Constitution in a narrow manner that respects the constitutional power and discretion committed to political branches. In contrast, an impermissible intrusion results when courts interpret their institutional authority and the text of the Constitution in an expansive manner that disregards the constitutional power and discretion committed to political branches. The study makes three propositions as a cure to constitutionally impermissible intrusions; first, where a constitutional power has been committed to a political branch, and no discernable textual constraint on that power is evident in the text of the Constitution, judges must refrain from creating constraints foreign to the text of the Constitution as a basis for review. Secondly, when a textual interpretation of the Constitution reveals an absence of normative standards to guide a political branch in answering a constitutional question committed to it, the Constitution empowers political branches with the duty to supply normative standards, which are binding on the court. Third, where a political branch fails to supply normative standards to an indeterminate constitutional provision, the court should not take it upon itself to supply determinacy. Its role is to direct the political branch to develop a normative framework that supplies determinacy. The three propositions offer a more predictable and stable deferential approach to the constitutional review of political questions. Constitutionally impermissible intrusions are inherently undemocratic and sour relations between the judiciary and political branches. They arise when judges set aside fidelity to text in interpreting the Constitution and assume an interpretive role that defiles the Constitution they claim to uphold. Through the approach advanced in this study, judges will be equipped with a framework with which to hold political branches accountable in a manner that does not tread upon terrain inappropriate for judicial intervention.
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    Counter-Terrorist Financing (CTF) regimes and institutional responses: a case study of Boko Haram insurgency in Nigeria
    (2025) Obonyilo, Matthew; Van Der Spuy, Elrena; Powell, Cathleen
    This thesis examines the intricate process of transmitting United Nations Security Council Resolutions 1267 and 1373 to Nigeria and operationalising global counter-terrorist financing policies through legal frameworks and a matrix of security and other state institutions in the domestic environment. The investigation focuses on the complex dynamics of the transmission process, from international to national, and inter-institutional diffusion involving internal institutions in Nigeria as a developing state. By critically engaging Michael Boyle's contributions to our understanding of how local contexts and situational specificities impact the effective transmission and diffusion of international counter-terrorism policies, the study considers how Nigeria's local conditions impact efforts to limit Boko Haram's access to funding through international regulatory instruments on counter-terrorist financing. The study both confirms and augments Boyle's analysis by drawing on qualitative field data involving nineteen policy specialists attached to governance and security elites in Nigeria and three multilateral institutions: United Nations Office on Drugs and Crime (UNODC), Financial Action Task Force (FATF), and Inter-Governmental Action Group against Money Laundering in West Africa (GIABA). Although the study demonstrates the applicability of Boyle's theory to Nigeria's conflict landscape, it rejects the idea that associates the failures of international counter-terrorism policies in third-world countries solely with the peculiarities of the domestic environment. The study sought to carve out space for other variables beyond Boyle's local conditions. They are those linked to development dynamics –corruption and underdevelopment, and global geo-political calculus - international assistance, international regulation, and the politics of the global war on terror. The study argues that to arrive at a more comprehensive understanding regarding counter-terrorism outcomes in a non-Western context, an overarching framework of formative influences in both the domestic environment and at the global governance level gives more profound insights into the issues impacting the effectiveness of counter-terrorism measures in a non-Western environment like Nigeria.
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    Cyberattacks: The latest threat to international peace and security, and how international law can respond
    (2020) Tlhacoane, Tshepo; Powell, Cathleen
    Today it is accepted that states may not unilaterally attack each other using rifles, missiles, nuclear, or chemical weapons. But what about computer software such as worms and trojans which are capable of causing similar or greater damage? Are states permitted to attack each other using these so-called cyberweapons? Are they even considered weapons due to their differing form? This is the crux of what this dissertation is about. It aims to show that if states are prohibited from attacking each other with certain categories of weapons, they should not be permitted to attack each other with a different weapon which causes similar damage. I make three overarching arguments in this dissertation. The first is that cyberweapons should be considered ‘weapons' even though they differ in form and sophistication. Secondly, that the use of cyberattacks is a use of force and contravenes article 2(4) of the UN Charter. Finally, I will argue that extant international law is not able to maintain international peace and security and that a multilateral treaty is required.
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    Global responsibility : humanitarian intervention as a justified mechanism to end post-conflict widespread and systemic sexual violence
    (2012) Jeeninga, Rigtje; Powell, Cathleen
    Sexual violence and conflict go hand in hand. In ancient warfare, sexual violence was a common procedure, perceived as an inevitable consequence of war. Soldiers needed to 'release' after heavy fighting; sexual distraction would reward, motivate and relax them. In other words, sexual violence was seen as 'collateral damage' and was therefore never prosecuted as a crime. This practice started to change after the Second World War. In fact, at the moment the existence of sexual violence was internationally acknowledged, women's rights gained recognition and several forms of sexual violence were classified. Finally, sexual violence was labeled as a 'weapon of war'.
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    Governing Outer Space as a Global Commons: Examining ‘Tragedy’ in Orbital Medium
    (2018) Oz, Besir Suleyman; Van der Spuy, Elrena; Powell, Cathleen
    The purpose of this research is to examine the outer space governance regime and to identify key governance deficits which are arguably the main reason for the far-reaching proliferation of space debris in the outer space commons. To this end, the research initially inspects two of the existing global commons – the maritime and polar regions – their governing regimes, and the regulatory, legal, and political challenges encountered in each. The discussion on the connection between global governance deficits and the environmental tragedies within these domains aims to establish the conceptual foundation of this study. Based on this foundation, the research discusses legislative and regulatory dimensions of outer space governance and international responses to the challenges facing the outer space commons. It concludes with the examination of the space debris problem and potential policy responses to address this global environmental tragedy. In this regard, in the light of Ostrom’s design principles, an international treaty on space environment protection, a financial programme in managing the cost of debris removal programmes and maintenance of spatial resources, and an international space agency to coordinate these fields and provide substantial cooperation between space actors, are offered as fundamental steps to prevent the tragedy in outer space – the common heritage of mankind. Therefore, this research intends to contribute to the understanding of the space debris problem and its consequences for global welfare.
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    Human settlement of Mars in the context of the Outer Space Treaty 1967
    (2018) Sinclair, Amy Laura; Powell, Cathleen
    This mini-dissertation asks whether international law permits the human settlement of Mars. The paper is inspired by the public goal of aerospace entrepreneur and futurist Elon Musk to transport human crew to Mars within 10 years. His company SpaceX, as well as other key players in the global aerospace industry, are rapidly developing the technological capacity and business case for the exploitation of off-world resources. Human settlement of Mars is no longer confined to the realm of science fiction. It raises questions of international law that, until very recently, were dismissed as fantastic. The Outer Space Treaty (1967) has found widespread acceptance; however Arts I and II dealing with rights to ‘use’ of space and banning ‘national appropriation’ are vague. The interpretation of these sections has proved controversial in light of proposals by private companies to exploit space resources by mining asteroids. This debate informs my reflections on whether human settlement of another planet might violate the Outer Space Treaty – but it is not quite the whole story. The opinions of leading space law experts on the question of human settlement of Mars opinions are frequently sought in the popular media, especially in the aftermath of any announcement of SpaceX or Elon Musk. However, the topic is yet to be dealt with in an in-depth academic setting. The paper will address: • Chapter II: Does the establishment and conduct of a human settlement fall within the freedom of activities anticipated in Article I Outer Space Treaty? • Chapter III: Does Article I oblige settlers to share the profits (if any) of their activities with Earth? • Chapter IV: Does the establishment of the settlement constitute an appropriation within the terms of Article II Outer Space Treaty? • Chapter V: Are settlers entitled to exclude others from the settlement?
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    Humanitarian intervention: legality, legitimacy and the search for solutions
    (2017) Babatunde, Elkanah Oluwapelumi; Powell, Cathleen
    Humanitarian intervention refers to the use of force for the protection of human rights in a foreign state and usually against the will of the state in which force is used. The legality of unilateral humanitarian Intervention is a widely contested area in contemporary international law. It is a discussion that cuts across law, morality and foreign policy. Humanitarian intervention brings to the fore the contention between the principles of sovereignty and political independence on one hand and human rights and the principle of common humanity on the other hand. Some scholars contend that humanitarian intervention is a violation of the principles of sovereignty and political independence of states and violates Article 2(4) of the United Nations (UN) Charter. Other scholars have argued that Artcicle 2(4) of the UN Charter does not prohibit the use of force for human rights purposes but rather prohibits use of force which is targeted against a state's political framework or territorial annexation. They argue further that huamn rights constitutes one of the purposes of the UN and it is therefore unthinkable that the UN Charter will prohibit the use of force for such a purpose as human rights. Humanitarian intervention thus stands at the crossroasds of very foundational principle of both customary international law and the UN Charter. In this thesis, I argue that humanitarian intervention is illegal under the UN Charter as it does not fall within the two exceptions to the use of force: self-defence and Security Council sanctioned use of force. However, I go further to argue for the legitimacy of humanitarian intervention based on the principles of common humanity and wider principles of sovereignty. This argument draws from the just war doctrine as postulated by Grotius and other early just war theorists. The need to allow for unilateral intervention is pertinent given the rise in the abuse of power by some governments. Sovereignty should not be an umbrella that shields human rights abuses.
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    In the light of the Crimean Crisis will International law have to accept that it is to the advantage of the citizens of Crimea that, in this case, the law of state succession applies De Facto in preference to that of occupied territory law?
    (2016) Handschumacher, Konstantin; Powell, Cathleen
    The Crimea Crisis didn't just influenced the political world, it also challenged the international law system. It is one of the major crisis after the Cold War where the relationship between western states and Russia were at a point of collapsing. After the fled of the former Russian president, the "Little Green Man" entered Crimea and took over the control over the territory. In the beginning Russia denied any connection to this rebel group, but according to the effecting control test, their action can be attributed to Russia. Therefore Russia used illegally force in Crimea. After holding a referendum, which didn't met the international standards, Crimea singed a treaty, which lead to the incorporation into the Russian Federation. Because of the link to the illegal use of force these actions violated international law. Crimea is therefore occupied territory and the law of occupation applies to the area. But because Russia considers the territory as part of the Russian Federation, it considers the law of state succession as the applicable law. When we compare the two legal systems in regards to the rights and citizenship, it can be concluded that none of the two legal systems are more beneficent for the inhabitants than the other. As a consequence one can hypothetical ask if there are legal arguments in international law, which can be put forward to underpin the assumption that for the benefit of the inhabitants the de jure legal system has to evade in favor for the de facto system. There are several possible legal arguments, but none of them is in the position to underpin the raised question. Even there are no legal arguments the current discussion in international has the possibility to strengthen the law of occupation.
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    International human rights law and climate change: the case for a duty to mitigate climate change
    (2021) Wendland, Johannes; Powell, Cathleen
    The dissertation deals with the relationship between climate change and international human rights law. A special focus lies on the question if states have a human rights obligation to mitigate climate change by reducing greenhouse gas-emissions. To this end, the dissertation develops and proposes a risk-based approach that helps overcome the complex issue of causation. After a short introduction (section I), the thesis establishes the framework (section II) by defining climate change on one hand and international human rights law on the other hand, describing roughly the scientific processes and the most pertinent legal instruments. It then puts both element in relation by briefly tracing the history of how scholars and activists have started to apply a human rights approach to the issue of climate change. This relation is further enlarged upon with an analysis of the factual impacts that climate change has on human rights guarantees (section III). Next to established human rights under especially the ICCPR and the ICESCR, the question is discussed if a self-standing right to a healthy environment exists de lege lata. The thesis also briefly describes the issue of climate justice. On this basis, the centrepiece of the dissertation then discusses the resulting human rights obligations (section IV). It notes that so far, there is significant scepticism towards a human rights duty to mitigate and its potential content is rather vague. To strengthen the case for a duty to mitigate, the text proposes a “risk-based” approach: Based mainly on jurisprudence by the European Court of Human Rights, it is argued that states not only have to prevent harm but also reduce mere risks of harm. This way, the issue of causation and attribution which is often seen as the Achilles-heel of a human rights approach to mitigation can be overcome. In the end, it is submitted that states are under a duty to reduce their greenhouse gas-emissions in accordance with the remaining “greenhouse gas-budget”. This argument is further corroborated with regard to climate justice and an extraterritorial perspective on the duty to mitigate (section V). It is argued that the international relevance of the right to self-determination as well as a duty not to interfere with human rights in other countries could require states to take into account not only climate change impacts in their own territory but also abroad. This way, the human rights duty to mitigate is not only reinforced, but can also help to realise a greater degree of climate justice. Lastly, the conclusion (section VI) recaps and summarizes the given argument and concludes that a human rights approach can be useful to compel governments to more decisive mitigation measures.
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    International regulation of foreign intelligence liaison
    (2015) Brookbanks, Darren Ackermann; Powell, Cathleen
    Edward Snowden is a hero. In 2013, he leaked what can arguably be considered as the greatest quantity of classified and top - secret foreign intelligence in history. The leak revealed the extent of pervasive global government surveillance that has been and continues to be conducted by foreign intelligence agencies such as the National Security Agency (NSA) in the United States and the Government Communications Headquarters (GCHQ) in the United Kingdom. His actions have led to international security sector reform of the international regulation of foreign intelligence liaison. Citizen Four, the 2015 Oscar award-winning documentary, is the story of Snowden. When asked by Glen Greenwald and Laura Poitras, the journalist and documentarian who covered his journey , why he did what he did, Snowden's response was that : '[I]t all comes down to state power against the people's ability to meaningfully oppose that power .. . if the policy switches that are the only thing that restrain these states were changed, you couldn't meaningfully oppose these ... that hardened me into action.' When closing a TED talk on how we take back the internet, Snowden's idea worth sharing was that: '... [D]emocracy may die behind closed doors but we as individuals are born behind those same closed doors ... We don't have to give up our privacy to have good government ... We don't have to give up our liberty to have security ... By working together, we can have both open government and private lives ... . ' The relationship between state power and people's opposition, the individual and democracy, privacy and good government, liberty and security are themes that run throughout this dissertation. They are thematic relationships that underlie the importance of the international regulation of foreign intelligence liaison. The international regulation of foreign intelligence liaison will continue to be shaped by these relationships. Chapter I picks up on these themes by reviewing the international regulation of foreign intelligence liaison as a phenomenon. Part II defines foreign intelligence, part III sets up the objectives of a regime for international law in liberal democracies, part IV recognises the challenges to effective oversight of foreign intelligence agencies and part V maps out different reasons for and uses and forms of foreign intelligence liaison. A core argument is that the inevitable abuse and misuse of foreign intelligence liaison should be regulated through a horizontal accountability mechanism as an international best practice. Chapter II focuses on the international regulation of foreign intelligence liaison through a legal analysis. It draws on the themes by summarising (part II) and critiquing (part III) two landmark judgments having the potential to set an international best - practice precedent that contributes to the international regulation of foreign intelligence liaison. The core argument is that communications interception warrants should be regulated by judicial pre-authorisation. This is a practical application of Chapter I's core theoretical argument mentioned above. Chapter III develops these themes by analysing the international regulation of foreign intelligence liaison through recommendations. Part II explores the regulation of signals intelligence (SIGINT) in South Africa. Part III sets out the national and regional applications of art 17 of the ICCPR with regard to private communications. Finally, by summarising and applying the core arguments of Chapters I and II to Chapter III, part IV recommends legal reform through a General Intelligence Laws Amendment Bill 2015 (the Bill).
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    Is the African Union’s decision on the ICC and the adoption of Article 46A Bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights unlawful under international law?
    (2014) Armadhila, Nelago Ndapandula; Powell, Cathleen
    The proceedings brought against Kenyan President Uhuru Kenyatta and his deputy, William Ruto for post-election election violence in 2007 by the International Criminal Court has resulted in action by the African Union that undermines individual criminal responsibility for heads of state and government officials and for the promotion and protection of human rights in Africa. This thesis will assess whether the African Union’s decision to not cooperate with the International Criminal Court, and the adoption of Article 46A Bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights is unlawful under the principles of international law. This thesis will also assess how these decisions will impact Africa’s ability to promote and protect human rights on the continent.
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    Is the African Union’s decision on the ICC and the adoption of Article 46A Bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human rights unlawful under international law?
    (2014) Amadhila, Nelago Ndapandula; Powell, Cathleen
    The proceedings brought against Kenyan President Uhuru Kenyatta and his deputy, William Ruto for post-election election violence in 2007 by the International Criminal Court has resulted in action by the African Union that undermines individual criminal responsibility for heads of state and government officials and for the promotion and protection of human rights in Africa. This thesis will assess whther the African Union’s decision to not cooperate with the International Criminal Court , and the adoption of Article 46A Bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights is unlawful under the principles of international law. This thesis will also assess how thes e decisions will impact Africa’s ability to promote and protect human rights on the continent.
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    Legal personality of artificial intelligence under international law
    (2019) Ivanova, Anna Todorova; Powell, Cathleen
    To be able to offer a deeper understanding of the topic this work will first examine the concept of legal personality, its meaning and application in the legal framework of international law over the years. Without claiming advanced technological knowledge in scientific areas like robotics and engineering the paper will then try to present some basic overview over the latest developments concerning Artificial Intelligence, such as quantum computing and emotional intelligence. Consequently some suggestions about possibilities of connecting these two topics will be made. The questions introduced will engage with the nature and different forms of legal personhood, its connection to intelligence, autonomy and/or consciousness. This paper aims to create a more practical and not a general, hypothetical idea of how an AI agent could be granted international legal personality and what could be the possible effects of that (for example rights and obligations). For this purpose it will focus on the recognised subjects of international law and examine on their example an AI agent as a possible future actor in international legal relationships. Subject of reference will be international law and recent developments in EU law, such as the European Parliament initiative to regulate Artificial Intelligence as well as some regulations and “visions” of national legislation, for example Estonia and China. Consequently the dangers of granting legal personhood to AI agents will be presented and discussed. The arguments against the creation of a “technical veil” will be examined closely. The work will then refer to possible advantages and positive aspects of an AI’s legal personhood under international law. In the final chapter a conclusion and some recommendation will be made.
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    Legal regulation of cyber warfare: reviewing the contribution of the Tallinn manual to the advancement of international law
    (2015) Sang, Michael; Powell, Cathleen; Woolaver, Hannah
    The development of modern technology is inevitably bound to change the conduct of warfare. It is also self-evident that the mode, typology and participants in current armed conflicts do not fit within the structures of traditional international law on the use of armed force. Indeed, in some cases the new conflicts pose intractable challenges to the existing law. This is particularly true with regard to the military use of cyber operations either in the context of armed self-defence or in the conduct of hostilities in time of armed conflict. The establishment of the worldwide computer network and the increasing reliance on digital services has brought about a new type of clear and present danger: the threat of cyber attack. The fact that cyber operations are a relatively novel phenomenon in the history of international law automatically raises some important questions regarding whether the existing rules of international law apply to them.6 Consider the evidence indicating that there have been Chinese government-backed cyber operations, including espionage, targeting State and corporate computer networks in the United States. The question that arises in regard to cyber incidents, like the one illustrated above, is whether international law governs them, and if so which specific rules apply, and the circumstances in which they apply. With the aim of clarifying the uncertainty as to the specific rules pertinent to cyber warfare, the Tallinn Manual on the International Law Applicable to Cyber Warfare was developed by a group of twenty renowned international law scholars and practitioners. It provides a useful basis on which to identify how and evaluate the extent to which international law applies to cyber operations. This research seeks to critically appraise both the current and prospective contribution of the Tallinn Manual to the advancement of international law. In particular, it focuses on how international law as enunciated in the Tallinn Manual governs cyber operations in general and how it applies to cyber-unique aspects of this form of warfare. The research then reviews the achievements of the Tallinn Manual as well as its shortfalls in relation to the development of a coherent framework of international law that can be used to govern cyber operations. After this, the research turns to the increasing role of non-binding instruments of international law in the process of international law-making. The case is then made for the possibility of the Tallinn Manual being the basis on which future binding norms may be crafted to provide specific legal regulation for cyber operations.
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    The legality of using the United Nations Security Council to bind third parties to the Rome Statute
    (2017) Mrewa, Loyce; Powell, Cathleen
    The consequential problems emanating from the linkages between law and politics in the international sphere will be examined in this dissertation. In particular, the SC referral mechanism to the ICC and its associated problems will be explored. The primary focus will be an investigation of the procedure used to refer a situation to the ICC, provided in Article 13 (b) of the Rome Statute.
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    The Paris Attach - a case for the right to self-defence?
    (2017) Hözel, Jana; Powell, Cathleen
    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.