Benjamin Goold

The number of multinational corporations (MNC) operating across the globe and their size have grown markedly since the 1990s. Mainly based in Global North countries, MNCs are created under the laws of their home states, from which they are separated by a corporate veil. Although home states benefit from the operations of their MNCs in other countries, they cannot be held accountable for the out-of-country actions of their corporate citizens unless, as the home state, they exercise a significant degree of control over the corporation. Meanwhile, the existence of fragile states persists. Such states frequently cannot regulate foreign companies on their soil, which often operate to lower standards abroad than in their home country. The result is that MNCs regularly violate international obligations in fragile states with impunity. In responding to this inequity, this dissertation uses Third World Approaches to International Law (TWAIL) to address the question of how international law has contributed to MNCs operating with impunity in fragile states. The dissertation attributes the persistence of an exaggerated corporate veil to the narrow application of the doctrine of state responsibility. The dissertation maintains this is manifested in the International Law Commission’s 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (draft articles), which functions, to the benefit of the Global North, as a hindrance to the true development of the international customary law of state responsibility. As a solution, the dissertation argues in favor of increased investigation into the current state of customary law outside of the draft articles. It also proposes an application of state responsibility that holds states responsible for the acts of their corporate citizens in fragile states when states have aided or assisted a company without performing the requisite due diligence to ensure the corporation’s compliance with international law.Finally, in addition to a theoretical discussion, the dissertation addresses the above through a case study involving the violation of an arms embargo by a private military and security company in Somalia.

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The full abstract for this thesis is available in the body of the thesis, and will be available when the embargo expires.

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This dissertation concerns reasons for the preventive shift in Chinese criminal law; that is, the social, legal, and political rationales of the shift. It is inspired by the eighth amendment of Chinese criminal law in 2011 which amended several penalties related to road, drug, and environmental safety. The eighth amendment stemmed from a series of nationally-known incidents that triggered widespread public dissatisfaction with the rules and functions of the Chinese criminal justice system. This dissatisfaction would eventually result in a crisis of the government and the legal system. Based on John Kingdon’s theory of the multiple streams (“problems, policies and politics”), this dissertation seeks to explain the origins of the legislative process and its outcomes by examining the role of public opinion, policy experts, and political actors in the making of Chinese criminal law. It also uses practices of the UK and the US as references. The dissertation claims that in authoritarian China, the prominence of risk control through criminal justice methods is a state response to uncertainties generated through reforms under the Chinese Communist Party’s leadership. This shift is the result of Chinese criminal law making, driven by the policy of pursuing public security. Under the influence of such policy, the legislation not only acts quickly in response to public emotion, but also to the social control demands of the police. It also gains more support through the responsive and inclusive process of legislation, even though most of the time it remains a consultation with the elites in the framework set by the CCP. In China, the current legislation of criminal law enhances the CCP’s legitimacy. However, compared with the West, how to restrain the expansion of criminal law is a more critical issue for consideration for the authoritarian state like China.

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This dissertation is a deconstruction of the African Union’s (AU) current opposition to the increasing expansion in universal jurisdiction’s scope and attempts by some Western states to prosecute some government officials of AU member states in exercise of this principle. In seeking to understand the AU’s opposition, the dissertation examines both the doctrinal basis for this “new” universal jurisdiction claim, as well as the politics and the political implications of this development, particularly on conflicts resolution in Africa. On the first question, it finds that the legal basis for the doctrine’s expansion is, at best, indeterminate and, at worst, nonexistence.On the second, it contends that: (1) the current AU’s opposition is a reflection of the broader climate of suspicion that has often clouded the relationship between the African region and the West, on one hand, and between the African region and international law, on the other hand – suspicion created by colonialism and exacerbate by the complicity of international law in the colonial project; (2) a critical examination of the praxis of universal jurisdiction reveals both the politics of exclusion of Third World states and a striking similarity between the principle and the doctrinal technologies employed by the positivist international law in the nineteenth and part of the twentieth centuries to legitimize colonialism; and (3) the inability of states exercising universal jurisdiction to consider the political consequences of their actions could undermine such indigenous approaches that can successfully facilitate conflicts resolution in Africa, such as peace deals and post-conflict truth commissions. In conclusion, therefore, the dissertation argues that one of the lessons to be learnt from this confrontation is that for any international human rights enforcement approach or mechanism to be effective, it must be accepted by states, particularly those who are most likely to be directly impacted by it – in this case the Third World. For this reason, the AU’s apprehension concerning the ongoing expansion of universal jurisdiction must not be dismissed. This, it is hoped, would ensure the stability of the international system and reduce the current North/South divide on the important issue of criminal enforcement. 

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