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This thesis sets out the international legal framework applicable to the passing of penal sentences by armed groups during non-international armed conflicts and assesses the practical and normative challenges that it entails. It explains that international law neither explicitly prohibits nor explicitly permits the passing of penal sentences by armed groups and, therefore, that such groups enjoy a limited legal capacity to pass penal sentences. However, armed groups remain subject to exacting fair trial guarantees, most notably the requirement of a regularly constituted court providing all the necessary judicial guarantees recognised as indispensable. While not categorically outlawing the operation of courts and passing of penal sentences, these guarantees will often overstrain the factual capacities of armed groups in practice. Nevertheless, the thesis demonstrates that a downgrading of these guarantees is doctrinally problematic and normatively undesirable. Moreover, the thesis explains that international law, at present, does not place an obligation upon armed groups to use penal sanctions in order to enforce compliance with IHL. Neither the organisational threshold requirement under IHL, nor substantive customary law obligations or the doctrine of command responsibility can be interpreted to place such duty upon armed groups. Nevertheless, recent State practice indicates an increasing demand for accountability measures carried out by armed groups. While penal sanctions can play a role in meeting these demands in cases where the armed group in question operates a capable judicial system, alternative measures exist that allow for the implementation of accountability in situations where a fair trial cannot be provided.

This doctoral thesis addresses crucial theoretical and policy questions concerning the morality of force in asymmetric warfare. I argue that asymmetric warfare exposes fundamental flaws with the internal logic of traditionalism, posing a challenge to the theory that arises independently from the revisionist critique. Traditionalists, by their own account, propose different moral paradigms for conventional and asymmetric conflicts, yet they offer no compelling account of what triggers these paradigms. Applying the logic of traditionalism consistently in both types of conflicts leads to conclusions that many traditionalists would reject, such as the suggestion that not all combatants are in fact morally equal. Moving from the realm of analytic philosophy to applied ethics, the asymmetric case further undermines pragmatic morally-directed arguments in support of traditionalism. Every aspect of this study, which encompasses four independent but interrelated papers and an introduction, reinforces these themes. Following a survey of the literature in the introduction, I present three theoretical papers that illuminate, respectively, problems with the traditionalist position on the exceptionalism of war, legitimate authority, and the moral equality of combatants. The final paper considers the policy implications of the foregoing research as it applies to US direct action in the global "war on terror," a model case of asymmetric warfare. The papers proceed as follows: "Between War and Peace." This paper interrogates the exceptionalist claim that being in a state of war triggers a different moral paradigm for defensive harming than in ordinary life. Asymmetric warfare presents a challenge to this view because it does not fall neatly within the war or peace paradigms, prompting some exceptionalists to propose a third moral paradigm referred to as jus ad vim. The jus ad vim framework, however, does not adequately explain how purportedly unique features of asymmetric warfare alter moral norms concerning defensive harming. "Legitimate Authority Beyond the State." In this paper, I argue that the asymmetric case exposes flaws in the traditionalist argument that only states and state-like groups possess legitimate authority to declare and wage war. Traditionalists uphold the Westphalian presumption that all states possess such authority, yet they claim that non-state groups which lack legitimate authority to rule also lack legitimate authority to go to war, and that their wars automatically are unjust. This position is inconsistent; states which lack legitimate authority to rule but nevertheless engage in war act unjustifiably, and their wars are criminal. "Moral Equality in an Unequal World." States which lack legitimate authority to declare war, however, cannot direct combatants to wage war justly on their behalf. The traditionalist view of legitimate authority, then, also undermines their position on the moral equality of combatants, or the Equality Thesis. Contractarianism offers the most promising means of saving traditionalism from these implications, yet it also fails to demonstrate why the Equality Thesis holds in all state-directed wars, but not in conflicts involving non-state actors. "Principles for Asymmetric Warfare." The above arguments constitute a compelling case for rejecting traditionalism in favour of an alternative approach, namely revisionism. Indeed, applying revisionism to asymmetric warfare poses none of the theoretical problems highlighted in the preceding papers. For this reason, the final paper is based loosely on revisionist principles insofar as it prescribes a reductivist and individualist approach to US direct action in the global "war on terror," that is, kill or capture operations conducted against terrorist targets. Taken together, the papers represent a sustained challenge to traditionalism that must be addressed if we are to accept that account of morality in war. I conclude by considering the implications of these findings for the theoretical debate between traditionalists and revisionists more broadly, as well as areas for future research.

This Thesis analyses the impact of strategic litigation in South Africa, being litigation that concerns interests beyond the immediate parties and pursues generally forward-looking goals involving social change. Part I develops an analytical and evaluative framework to assess impact and its value. Part II applies that framework to two case studies concerning litigation on the right to education and the appointment and removal of government officials. I situate strategic litigation in the litigation process, considering the models and forms that it may take and the range of remedies that may result from it. The analytical framework identifies the type, temporality, people affected and reach of impact as its main dimensions, and, in respect of type, proposes a typology of legal, material and political impact to analyse the effects of strategic litigation. Recognising that litigation in South Africa takes place in a constitutional context, the Thesis proposes the values of social justice, democracy and the rule of law as a normative framework to evaluate the effects of strategic litigation. In Part II, this analytical and evaluative framework is applied to two case studies. The first case study concerns six streams of litigation to compel government to provide certain educational inputs, including infrastructure, textbooks, furniture, teachers and scholar transport. The second case study, arising in the context of the phenomenon of 'state capture', considers litigation seeking to remove allegedly unfit officials from key state institutions and to compel the appointment of suitable persons. The conclusion to the Thesis consolidates insights from across the case studies, ultimately arguing that the South African litigation environment is generally conducive to strategic litigation and that, given adequate litigation resources and appropriate litigation decisions, strategic litigation in South Africa is capable of contributing to significant legal, material and political impact and therefore to social change.

International rules regulating copyright pose obstacles to accessing educational materials, particularly impacting persons living in poverty, persons living with disabilities and other marginalised groups. This Thesis argues that access to educational materials is a human right under the right to education and imposes obligations upon states. State obligations under human rights law thus appear to conflict with international copyright obligations for common parties. In demonstrating that states can reconcile these competing obligations harmoniously, the Thesis advances a rights-based response to the problem of access for those neglected by the market. This Thesis is divided into two Parts. Part I locates access to educational materials as a human right and gives content to states parties' obligations. It identifies and analyses educational 'exceptions' to copyright in the relevant copyright treaties. It argues that these 'exceptions' coincide with states parties' human rights obligations to facilitate access. States parties can thus concurrently fulfil both sets of obligations to respond to the problem of access for the most marginalised. However, after analysing the relative institutional design of the international trade system and human rights treaty bodies, Part I concludes that trade-based obligations are likely to be prioritised over human rights obligations. This prioritisation negatively impacts access to educational materials in countries that cannot afford to pay for free access for all. Part II investigates the manner in which two countries in the global South have sought to reconcile these obligations. South Africa's draft copyright legislation seeks to do this but the President has declined to assent to it due to concerns emanating from the international trade system and related actors. This illustrates the conclusions at the end of Part I. In contrast, a recent Indian court decision demonstrates the possibility of adopting a harmonious interpretation that facilitates equitable access for the most marginalised. The Thesis thus emphasises the crucial role of domestic constitutional actors in harmonising competing international obligations.

This thesis explores the right to leave any country, including one's own, in international law and its applicability to externalised migration control. Destination states and the European Union are employing a range of practices designed to prevent certain migrants leaving the state they are in and their irregular arrival, typically in cooperation with other states, private actors, and international organisations. Motivated by this phenomenon, this thesis focuses on the right to leave for migrants (including nationals seeking to leave their own state), which is fundamental on its own terms and in securing liberty and equality. It assesses the compatibility of key externalisation measures with the right and considers which actors bear responsibility for ensuing violations. Part I develops a general framework for determining whether restrictions conform with the right to leave, analysing the right's scope and requirements and outlining corresponding obligations and duty-bearers. This shifts the focus onto challenging the traditional view that states have an almost unfettered right to exclude non-nationals, illustrating obligations to admit before demonstrating that the right to leave is exercisable irrespective of any right of entry. It then reveals the practical and legal necessity of the right for asylum seekers, appropriately formulated as a 'right to leave to seek asylum' and accompanied by several duties. Part II examines the law on jurisdiction and international responsibility. Applying the previous findings, Part III turns to externalisation, analysing the compatibility of visas, carrier sanctions, pushbacks, and pullbacks with the right to leave. It concludes that in most circumstances, such practices violate the right, with each actor responsible for their respective role. Overall, this thesis highlights the need for the primary contours of the right to be integrated into migration control policies and practices, compelling the dismantlement of many externalisation strategies and a re-imagining of the global (im)mobility infrastructure.

This thesis aims to analyse the extraterritorial naturalisation practices of Russia and Hungary to determine the states' motivation and the domestic and international consequences of the policies. At the individual level, it remains a state's legal prerogative to confer citizenship upon whomever it wishes consensually. When done to an extraterritorial collective, the practice can and has caused disputes between states. Russian and Hungarian state officials defend the practice by arguing the conferral of citizenship is a legal manifestation of a responsibility to privilege co-nationals, wherever they may reside. While this position cannot be entirely dismissed, it is argued that it lacks sufficient explanatory power and that strategic and instrumental motivations are fundamental to the practice. Research in International Relations has so far neglected to investigate citizenship policies from a strategic foreign policy perspective, a shortcoming this thesis seeks to address. Using a case study qualitative research design involving fifty-two interviews with political stakeholders and an official state discourse analysis, it shows that Russia and Hungary have made international and domestic gains by naturalising targeted populations in their contiguous states, which can be metaphorically described as an annexation of populations. The official state discourse from the leaders of Russia and Hungary relating to external populations and territory are found to exhibit similarities. This thesis offers an emotive analogue that the extraterritorial naturalisations are justified as a means to rectify perceived injustices at historical losses caused by external rivals. The significance of this study is that it informs our theoretical understandings of key concepts of International Relations by focussing on the implications of extraterritorial naturalisation on sovereign territorial integrity, the nation, (dual) citizenship and will interest constructivists and realists and those interested in international law.

This thesis proposes a theory to explain the conditions under which moral argument matters in world society, called the logic of consistency. The theory is the result of an examination into the rise of international scrutiny of national human rights practices, with a focus on the three United Nations monitoring institutions: the Treaty Bodies, the Special Procedures, and the Universal Periodic Review. The move to these institutions, which serve to identify, verify, and publicise the (in)ability of states to comply with their human rights obligations, represents a curious phenomenon that cannot be explained by IR middle-range or grand theories, but it can by the logic of consistency. The logic of consistency identifies and connects traces of political action in relation to international scrutiny of human rights over the last hundred years, offering a revisionist account of the rise of human rights institutions. Building exclusively on primary sources, the empirical analysis demonstrates how appeals of political actors to universal principles has generated a universal horizon that pulls them towards the spirit of the universal principles they invoke, irrespective of their intentions. This universal horizon has subverted the resistance of states to external scrutiny and has compelled them to embrace permanent scrutiny of all states, in relation to all rights at all times, with or without their consent. The logic of consistency reveals the immanent ground of universalism, beyond metaphysical principles or assumptions of cultural unity in world society. It draws on philosophy, sociology, history, legal theory, and politics and aspires to contribute to the understanding of the behaviour and significance of moral argument in all these fields. Its scope is so wide that it is hard to identify social norms and institutions not shaped by it. Indeed, the social world is unthinkable without consistency.

Today about half of the world's refugee population are children. The ensuing need for protection of children seeking asylum has been sought to be addressed by international law through various international treaties, including the Convention relating to the Status of Refugees, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the European Convention on Human Rights, and the American Convention on Human Rights. Most of these treaties, however, are age-neutral and do not afford special protection to asylum seeking children. This has prompted the international institutions (both adjudicative and norm-setting ones) to interpret the rules related to asylum seeking children through an 'adult-focused lens', resulting in the misinterpretation of the rules and the development of age-insensitive jurisprudence and norm-setting practice. This thesis examines the interpretation of key rights, which are particularly important to children seeking asylum, namely the rights to liberty and family life, by five international institutions (the Committee on the Rights of the Child, the Human Rights Committee, the European Court of Human Rights, the Inter-American Court of Human Rights, and the United Nations Refugee Agency). The thesis argues that the misinterpretation of the rules providing for these rights may be addressed by greater interaction between the international institutions, and specifically through the reference, in the course of interpretation, to an age-sensitive treaty, the Convention on the Rights of the Child. The child's best interests principle, which is reflected in Articles 3 and 9, is a unique provision to the Convention on the Rights of the Child and should play a central role in the interpretation of the rights of asylum seeking children. The thesis answers both a descriptive question of what the current interpretative practice of these international institutions is, and a normative question of whether the international institutions pay appropriate attention to the child's best interests principle. The thesis relies on two arguments, the systemic integration principle and the most favourable approach. It concludes that giving due weight to the child's best interests principle leads to the most favourable interpretation of the rights to liberty and family life of asylum seeking children.

Offence to religious belief is any form of expression deemed insulting to the religious belief of a person or a group of persons. Blasphemy and apostasy are notable examples of such offences, which are at times regarded as an affront to social and religious morals, but can also be deemed as an infringement of the law or even a violation of human rights. Despite being essentially intangible, such offences have led to prosecutions, arrests, riots, and deaths throughout history. Nevertheless, there is limited research on the legal nature of these offences, as well as little clarity on the terminology used to characterise offence to religious belief. This perplexing scenario is further aggravated by the lack of direction from international adjudicating bodies dealing with expressions deemed offensive to religious belief. Consequently, the issue in question remains highly contentious worldwide. This thesis seeks to answer the following question: what are the normative underpinnings that international human rights courts and treaty bodies should take into consideration when deciding cases of offence to religious belief? To answer this question, the thesis will be divided into six chapters. The first chapter briefly scrutinises the foundations of prohibitions of offence to religious belief and proposes a re-examination of contemporary concepts related to such offences in order to test their compatibility with international human rights law. Chapters two to six examine structural and jurisprudential issues regarding offence to religious belief in international human rights law, to determine what are the normative principles that can be employed by international human rights courts and treaty bodies to resolve issues related to such offences. Therefore, this thesis addresses issues regarding offence to religious belief from a legal perspective, in order to provide greater legal certainty in such cases and a more holistic protection of human rights to every person.

Violence against women (VAW) is constitutive of patriarchal dominance and a distinctive human rights violation. This thesis explores VAW in the context of migration, focussing on the main laws governing migration to the UK and within the EU. To do so, it develops a conceptual account of VAW, one that is grounded in international law and which establishes what is at the core of this wrong: interpersonal, discriminatory violence. Part 1 of this thesis demonstrates that British immigration law disadvantages women, granting them migration statuses which make them dependent on others and which bestow few rights. Some of the rules that create this disadvantage are properly characterised as involving unlawful discrimination. This State-created disadvantage interacts with the extant risks and consequences of VAW in particular ways, including by granting its perpetrators access to the coercive power of the State. Not only does the State increase migrant women’s vulnerability to VAW, it compounds their experience of it. States and others, including the EU, have recognised that some migrant women’s experience of VAW warrants an immigration law response. This has, however, been achieved in a piecemeal fashion, by establishing what this thesis characterises as ‘regimes of exception’. Part 2 evaluates four of these regimes. Chapter 4 examines two sets of rules which determine the migration status of some domestic violence victims. Chapter 5 analyses the European trafficking regime, whilst Chapter 6 focuses on the Istanbul Convention. Contrary to the obligations identified in Part 1, Part 2 demonstrates that the domestic violence and trafficking regimes provide a migration status which is reparative of the compounded disadvantage migrant women experience in only a minority of cases. Accordingly, this thesis argues for States’ and the EU’s full ratification of the Istanbul Convention, and for comprehensive migration status reform, including the abolition of dependent migration statuses.