Law Commons^™

Incorporating The Third Party Beneficiary Principle In Natural Resource Contracts, James T. Gathii

James Thuo Gathii

Third world citizens—parties who often have the most to lose in natural resource contracts between their governments and foreign investors—often have no voice in negotiations of the contracts and consequently have no remedy under contract law when harms occur or when the contracts are not properly enforced. The privity doctrine, which permits contract suits only by parties to the contract, bars these citizens from suing because they were not in privity with any of the contracting parties, despite that these contracts are generally made for the benefit of these citizens. However, some countries have adopted—and this Essay argues other countries …

Jurisdiction To Prosecute Non-National Pirates Captured By Third States Under Kenyan And International Law, James Thuo Gathii

James Thuo Gathii

On January 16, 2009, Kenya and the United States signed a Memorandum of Understanding (MOU) under which Kenya agreed to try suspected pirates captured by the U.S. In addition, Kenya signed a similar MOU with the European Union on March 6, 2009. Another is planned between Kenya and China.

This paper examines Kenya’s decision to receive and prosecute these suspects, as well as an important new Merchant Shipping law, (currently awaiting Presidential assent), that confers on Kenyan Courts jurisdiction over non-nationals for hijacking and robbery committed on the high seas. This statute effectively establishes universal jurisdiction over piracy. This new …

War's Legacy In International Investment Law, James Thuo Gathii

James Thuo Gathii

This paper discusses the role war has played in shaping rules of international investment law from the late nineteenth century. At the end of the nineteenth century and the beginning of the twentieth century, the move towards institutions, such as arbitration forums, and rules as an alternative to the use of force gave new impetus to the growth of international commercial law and related institutions.

These rules and institutions represented the hope that the use of force would be eclipsed as States moved forward towards more cooperative, consensual and non-coercive mechanisms of dispute settlement. Capital-importing states in Latin America however …

Jurisdiction To Prosecute Non-National Pirates Captured By Third States Under Kenyan And International Law, James Thuo Gathii

James Thuo Gathii

On January 16, 2009, Kenya and the United States signed a Memorandum of Understanding (MOU) under which Kenya agreed to try suspected pirates captured by the U.S. In addition, Kenya signed a similar MOU with the European Union on March 6, 2009. Another is planned between Kenya and China.

This paper examines Kenya’s decision to receive and prosecute these suspects, as well as an important new Merchant Shipping law, (currently awaiting Presidential assent), that confers on Kenyan Courts jurisdiction over non-nationals for hijacking and robbery committed on the high seas. This statute effectively establishes universal jurisdiction over piracy. This new …

Commercializing War: Private Military And Security Companies, Mercenaries And International Law, James Thuo Gathii

James Thuo Gathii

This paper addresses the growing involvement of foreign and private military, defense and security firms and mercenaries, particularly in the countries with the least effective control of their often remote and dangerous resource rich territories. Private military and security companies pride themselves as responses to the failure of national, regional and international public governance structures to play effective roles in maintaining peace and security.

This paper shows that international law rules on regulating the use of violence of non-State actors is divided between those cases like terrorism, where the state responsibility has been laid down in mandatory terms by the …

War's Legacy In International Investment Law, James Thuo Gathii

James Thuo Gathii

This paper discusses the role war has played in shaping rules of international investment law from the late nineteenth century. At the end of the nineteenth century and the beginning of the twentieth century, the move towards institutions, such as arbitration forums, and rules as an alternative to the use of force gave new impetus to the growth of international commercial law and related institutions.

These rules and institutions represented the hope that the use of force would be eclipsed as States moved forward towards more cooperative, consensual and non-coercive mechanisms of dispute settlement. Capital-importing states in Latin America however …

Slippages Of The Public/Private In Resource Wars, James Thuo Gathii

James Thuo Gathii

This paper demonstrates that the public/private distinction that undergirds the view that States have a monopoly of violence of the means to wage war while inaccurate continues to inform contemporary debates in international law in the context of conflicts over resources like diamonds. It shows how the sharp distinctions and boundaries between public and private realms in relation to the monopolization of violence contributes to the ambivalent commitments of the global legal order – and of international law in particular – in dealing with non-state actors engaged in initiating or starting wars in the context of resource wars. In short, …

Commercializing War: Private Military And Security Companies, Mercenaries And International Law, James Thuo Gathii

James Thuo Gathii

This paper addresses the growing involvement of foreign and private military, defense and security firms and mercenaries, particularly in the countries with the least effective control of their often remote and dangerous resource rich territories. Private military and security companies pride themselves as responses to the failure of national, regional and international public governance structures to play effective roles in maintaining peace and security.

This paper shows that international law rules on regulating the use of violence of non-State actors is divided between those cases like terrorism, where the state responsibility has been laid down in mandatory terms by the …

Slippages Of The Public/Private In Resource Wars, James Thuo Gathii

James Thuo Gathii

This paper demonstrates that the public/private distinction that undergirds the view that States have a monopoly of violence of the means to wage war while inaccurate continues to inform contemporary debates in international law in the context of conflicts over resources like diamonds. It shows how the sharp distinctions and boundaries between public and private realms in relation to the monopolization of violence contributes to the ambivalent commitments of the global legal order – and of international law in particular – in dealing with non-state actors engaged in initiating or starting wars in the context of resource wars. In short, …

War's Legacy In International Investment Law, James Thuo Gathii

James Thuo Gathii

This paper discusses the role war has played in shaping rules of international investment law from the late nineteenth century. At the end of the nineteenth century and the beginning of the twentieth century, the move towards institutions, such as arbitration forums, and rules as an alternative to the use of force gave new impetus to the growth of international commercial law and related institutions.

These rules and institutions represented the hope that the use of force would be eclipsed as States moved forward towards more cooperative, consensual and non-coercive mechanisms of dispute settlement. Capital-importing states in Latin America however …

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …

War's Legacy In International Investment Law, James Thuo Gathii

James Thuo Gathii

This paper discusses the role war has played in shaping rules of international investment law from the late nineteenth century. At the end of the nineteenth century and the beginning of the twentieth century, the move towards institutions, such as arbitration forums, and rules as an alternative to the use of force gave new impetus to the growth of international commercial law and related institutions.

These rules and institutions represented the hope that the use of force would be eclipsed as States moved forward towards more cooperative, consensual and non-coercive mechanisms of dispute settlement. Capital-importing states in Latin America however …

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …