On the coherence of a duty to surrender with just war theory and the laws of war

Abstract

This thesis conducts an interdisciplinary analysis of the obligation for states and individuals to surrender as an emerging phenomenon in just war theory and international law. It seeks to establish the humanitarian value of a duty to surrender and extrapolate it from the principles of these two disciplines, arguing that the lack of a previous in-depth analysis of surrender is not just an absence, but an oversight. After conducting a historical analysis of surrender it explores the doctrinal basis of such a duty in related bodies of international law: the law on the use of force, international humanitarian law, human rights law, aggression and international criminal law, and peace treaties in international law.

This thesis then explores the orthodox and revisionist schools of just war theory gradually assessing the themes which coalesce around the determination of justice in surrender. It argues that the duty to surrender must, in order to avoid the pitfalls of empire and appeasement, draw its normative force from popular sovereignty and the right of self-determination. It establishes the value of referenda and conscientious objection as important mechanisms in the duty to surrender. Equipped with these ideas, the thesis finally turns to a discussion of the parameters of the right of self-determination in international law. Ultimately, it fully theorises the source and requirements of the duty to surrender for individuals and states, and how they interact. It positions the duty to surrender as an obligation with the potential to not only be coherent with just war theory and international law, but which allows them to better achieve their humanitarian promise.