With the emergence of powerful non-state actors onto the international plane, it has been necessary for international law to adapt and recognise legal actors other than the sovereign state. This article contends that it is essential that international legal recognition now be extended to multinational corporations and nongovernmental organisations. This ensures that such actors cannot escape accountability for violations of international law but also that they granted legitimate rights as participants in (...) the international system. Such a development does not require that the primacy of the state under international law be diminished. On the contrary, the theory and practice of international law requires that the state retain its position atop the international hierarchy. (shrink)

During this age of globalisation, the law is characterised by an ever diminishing hierarchical framework, with an increasing role played by non-state actors. Such features are also pertinent for the international enforceability of human rights. With respect to human rights, TNCs seem to be given broadening obligations, which approach the borderline between ethics and law. The impact of soft law in this context is also relevant. This paper aims to assess whether, and to what extent, this trend (...) could be a proper path to enforce the legal accountability of transnational corporations for human rights. It will be argued that the interplay between law and ethics should be assessed differently depending on which kind of correlative duty is at stake. With regard to negative duties, soft law tools concerning TNCs’ conduct may weaken the impact of hard law. By contrast, when positive duties are concerned, insofar as the horizontal effect of rights cannot be assumed, soft law turns out to be much more useful. (shrink)

International Human Rights Law is clear in holding only states or state-like entities responsible for human rights abuses, yet activists and philosophers alike do not see any rational basis for this restriction in responsibility. Multi-national corporations, individuals and a whole array of other 'non‐state actors' are capable of harming vital human interests just as much as states, so why single-out the latter as human rights-responsible agents? In this paper I distinguish two ways of looking at human (...) rights responsibility. One is simply in terms of the outcomes that are deemed desirable to avoid (or secure), and the other is in terms of the relationships one sees these moral standards as governing. I argue that the peculiar form of responsibility and responsiveness (the way of 'holding to account')inherent to human rights principles is directed at establishing a particular type of relationship: one in which individuals are empowered in the face of a very special form of communal power. Other kinds of relationship and potential transgression are more appropriately governed by different kinds of moral principles, such as those relating to criminality. The outcomes view fails to incorporate this insight and for that reason fails to see the distinct role played by human rights standards in our moral reasoning: they are precisely valuable because they provide a way to judge the relationship of individuals to the peculiar kind of power exercised by the state. Part of this project is a re-assessment of the methodology employed by philosophers in establishing moral principles and concepts, such as those relating to human rights standards. (shrink)

ABSTRACTThis article provides a normative appraisal of the law of military occupation by looking into occupation courts and their legitimacy. It focuses on two cornerstones of the current regulation of war: the principle of equality of belligerents, that is, the potential relevance ofjus ad bellumconsiderations on thein bellorights of occupants, and the normative force of the traditional distinction between states and non-state armed groups, specially in conflicts not of an international character. Against the currently predominant neoclassical position in (...) just war theory, it argues in favor of the moral equality of just and unjust occupants. Against the orthodox position in international law, it advocates the symmetrical treatment of states and non-state actors fighting internal armed conflicts, at least in terms of the rights they may claim on the territories under their control. It concludes by appraising the way in which this moral landscape should be translated into legal norms. (shrink)

Traditional state v. state war is largely a relic. How then does a nation-state protect itself - preemptively - against the unseen enemy? Existing international law - the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373 - do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act (...) earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based "strict-scrutiny" approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable, and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power o the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism. Muge Kinacioglu, Department of International Relations, Bilkent, University, Turkey, wrote a response to my article titled, "A Response to Amos Guiora: Reassessing the Parameters of the Use of Force in the Age of Terrorism: Pre-emptive Action and International Law." Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, also wrote a response titled, "A Response ot Amos Guiora's Article on Pre-Emptive Self-Defence Against Non-State Actors.". (shrink)

In this roundtable discussion, early-career researchers working in the field of law, gender, and sexuality discuss international and trans-national developments to legal gender. ‘The Future of Legal Gender’ research project focused on the legislative framework of England and Wales to develop a prototype for decertification. The domestic legislation, however, was situated within a wider international context throughout the project. This roundtable discussion, therefore, provided an opportunity for reflection on the transnational issues raised by decertification, with a particular focus (...) on developments arising in the jurisdiction(s) studied by the early career researchers. The roundtable began with a brief outline of these recent developments before moving to an open discussion on key themes including the value of reform on wider society, changes on-the-ground by non-state actors, and alternative processes for tackling gender inequalities without certifying legal gender. The online conversation took place on 28 June 2021 and has been transcribed and edited for continuity, clarity, and referencing. (shrink)

Crises of forced migration are, unfortunately, nothing new. At the time of the writing of this paper, at least two such crises were in full swing – mass movements from the Middle East and parts of Africa to the E.U., and major movements from Central America to the Southern U.S. border, including movements by large numbers of families and unaccompanied minors. These movements are complex, with multiple causes, and it is always risky to attempt to craft either general policy or (...) philosophical positions in response to salient crises. However, both of these instances do bring to the foreground important questions about the proper purpose and extent of refugee protection as a means of dealing with crises of forced migration. In particular, both of these instances force us to consider what role persecution on the basis of a protected ground – race, religion, nationality, membership in a particular social group, or political opinion – ought to play in granting refugee protection, and whether our response to those in danger should change if the agents of persecution are non-state actors. This paper is not primarily about the problems arising from Syria or Central America. In a way similar to how hard cases make bad law, I contend that a too central focus on salient crises tends to lead to bad theory and often to bad general policy. However, if I am successful in my goal of clarifying the place of persecution and non-state action in refugee protection, then we may in turn be better able to think clearly about our current crisis situations. -/- In this paper I will first draw on my previous work on the normative logic of the refugee convention to argue that, while persecution should play an important, and even central, role in our thinking about refugees, this importance is shallow and pragmatic rather than deep and fundamental. Next, I will show how this conclusion supports the claim that harms amounting to persecution by non-state actors may ground an asylum claim, at least in some cases, both when the state is unwilling and when it is unable to protect its members. I consider two cases: first, instances where the authority and power of the state has been usurped by another power, and second, when the state has (implicitly or explicitly) delegated its power or authority to non-state actors. I will show how this leads to extending asylum to a broader range of people than traditional accounts would. -/- (To download this paper, please use the link from SSRN below.). (shrink)

Necessity is a notoriously dangerous and slippery concept-dangerous because it contemplates virtually unrestrained killing in warfare and slippery when used in conflicting ways in different areas of international law. Jens David Ohlin and Larry May untangle these confusing strands and perform a descriptive mapping of the ways that necessity operates in legal and philosophical arguments in jus ad bellum, jus in bello, human rights, and criminal law. Although the term "necessity" is ever-present in discussions regarding the law and ethics (...) of killing, its meaning changes subtly depending on the context. It is sometimes an exception, at other times a constraint on government action, and most frequently a broad license in war that countenances the wholesale killing of enemy soldiers in battle. Is this legal status quo in war morally acceptable? Ohlin and May offer a normative and philosophical critique of international law's prevailing notion of jus in bello necessity and suggest ways that killing in warfare could be made more humane-not just against civilians but soldiers as well. Along the way, the authors apply their analysis to modern asymmetric conflicts with non-state actors and the military techniques most likely to be used against them. Presenting a rich tapestry of arguments from both contemporary and historical Just War theory, Necessity in International Law is the first full-length study of necessity as a legal and philosophical concept in international affairs. (shrink)

In 2018, Attorney General Jeff Sessions, in Matter of A-B-, attempted to bar victims of non-state actors—such as intimate partners and local gangs—from obtaining asylum in the United States. This article focuses on domestic violence-based asylum claims that made it to the US Circuit Court of Appeals during the Trump administration and the first five months of the Biden administration. My interdisciplinary approach goes beyond analysing the effect that Matter of A-B- has had on the outcomes of cases (...) and asks how judges evaluate the credibility of petitioners, determine whether domestic violence can rise to the level of persecution, and decide whether a government was unwilling or unable to protect the victim. A systematic analysis of 83 appellate level verdicts shows that asylum decisions are fraught with inconsistencies and that many judges lack a sophisticated understanding of domestic violence, credibility, and trauma. (shrink)

Does it seem that with each reported state cyberattack, there comes an announcement of discovery, an attribution to one of a handful of usual suspects, some threatening language suggesting imminent retribution, and then nothing more? Increased incidence of cyberattack makes its occurrence seem simultaneously rampant in terms of publicity and minimal in terms of threat of war. If rampant, how can repeated deployment by the same actors carry no punitive consequences? How is such audaciousness tolerated? For some, a (...) cyberattack by a state is an act of war. Its prevalence suggests there must be a void somewhere that facilitates its use without consequence. Others think state cyberattack is like other internet novelties: digital malfeasance, amounting to a nuisance that naturally follows from a digital‐based existence, particularly since non‐state actors are typically involved. Yet, state‐on‐state hostilities are historically perilous on a vast scale, and there is a multilateral system for regulating the use of force in the context of war. Acts of war, even when seeming minimal in impact, are not by‐products of a digital fad, and cyberattack is now described as far more than ‘nuisance’. If anywhere, the place for clarity on hostile state cyberoperations use should be accounted for in International Humanitarian Law. Yet, in its present form, it is ambiguous if not silent on the subject, suggesting that cyberattack currently presents an advantage to perpetrating states. Does this void or these ambiguities make cyberattacks more legally advantageous to states than traditional, kinetic weaponry? I examine whether existing IHL is sufficiently adaptable to state cyberoperations through a mixed legal and theoretical approach and conclude that they do. (shrink)

The essays collected in this special issue explore what legitimacy means for actors and institutions that do not function like traditional states but nevertheless wield significant power in the global realm. They are connected by the idea that the specific purposes of non-state actors and the contexts in which they operate shape what it means for them to be legitimate and so shape the standards of justification that they have to meet. In this introduction, we develop this (...) guiding methodology further and show how the special issue’s individual contributions apply it to their cases. In the first section, we provide a sketch of our purpose-dependent theory of legitimacy beyond the state. We then highlight two features of the institutional context beyond the state that set it apart from the domestic case: problems of feasibility and the structure of international law. (shrink)

This article deals with the gamut of international law. Empirical research on international law, charts three main factors—states and bureaucracies, private actors, and international institutions, specifically international tribunals. International law maintains the centrality of the state, which is also the functioning ground for various sub-state structures, governmental actors, and institutions. Private actors such as corporations and non-governmental organizations are instrumental in influencing the construction and outcome of international law. Regarding (...) the relevance of international laws, some opine that while states do infact deliver on obligations, they only choose those that are easy to comply by. Hence, efficiency becomes doubtful. Further, it is claimed that state's compliance only reflects its intentions, not a behavioral shift. These opinions merit questions regarding the relevance of international law. Studies in this field concern, broadly, international human rights law, criminal law, war laws, trade laws, investment law, and regulatory laws. (shrink)

International relations (IR) is both a science and an art, i.e. the unity of object and subject. Traditional international relations theories (IRT) have probed the laws of IR, in an attempt to become the universal science. IRT have developed into a class doctrine that defends the legitimacy of the western international system as a result of proceeding from the reality of IR, while neglecting its evolving process, and overlooking the meaning of art and the presence of multi- (...) class='Hi'>international systems. In other words, IRT have turned into what Karl Marx might have deemed as the vulgar international relations theories (VIRT). For this reason, we declare the end of international relations theories. This phenomenon can only be negated by the so-called Chinese School, which will set the sustainable and harmonious relations among nations, between state and non-state actors, and within states and non-state actors (in one word ) in five life-forces of economy, politics, military, culture, and religion. Consequently, this will bring about a real regression of nationality and compatible development of various international systems. (shrink)

ABSTRACTThis article addresses the identity of the legitimate actors of international law-making from the perspective of democratic theory. It argues that both states or state-based international organisations, and civil society actors should be considered complementary legitimate actors of international law-making. Unlike previous accounts, our proposed model of representation, the Multiple Representation Model, is based on an expanded, democratic understanding of the principle of state participation: it is specifically designed to palliate the democratic (...) deficits of more common versions of the Principle of State Consent. Second, it endorses a qualified version of the Principle of Civil Society Participation, one that is much more restrictive and more critical of the democratic defects of civil society actors than most of its current supporters. Finally, it reveals how the democratic strengths and deficits of both models are best approached as mirroring one another and need to be combined in a complex ac... (shrink)

The use of cyber force can be as severe and disruptive as traditional armed attacks are. Cyber attacks may neither provoke physical injuries nor cause property damages and still, they can affect essential functions of today’s societies, such as governmental services, business processes or communication systems that progressively depend on information as a vital resource. Whereas several scholars claim that an international treaty, much as new forms of international cooperation, are necessary, a further challenge should be stressed: authors (...) of cyber attacks can be non-state actors, and identifying the party responsible for such a use of force, whether non-state actors or national sovereign states, is often impossible. Accordingly, several programmes on online security and national defence have been developed by sovereign states to tackle this menace and yet, the endurance of Western democracies and their aim to protect basic rights have already been tested by such programmes over the past years. The new scenarios of cyber force do not only concern the field of international law, since they may represent the main threat in the fields of national and constitutional law as well. (shrink)

In this essay I analyze some conceptual difficulties associated with the demand that global institutions be made more democratically accountable. In the absence of a world state, it may seem inconsistent to insist that global institutions be accountable to all those subject to their decisions while also insisting that the members of these institutions, as representatives of states, simultaneously remain accountable to the citizens of their own countries for the special responsibilities they have towards them. This difficulty seems insurmountable (...) in light of the widespread acceptance of a state-centric conception of human rights, according to which states and only states bear primary responsibility for the protection of their citizens' rights. Against this conception, I argue that in light of the current structures of global governance the monistic ascription of human rights obligations to states is no longer plausible. Under current conditions, states are bound to fail in their ability to protect the human rights of their citizens whenever potential violations either stem from transnational regulations or are perpetrated by non-state actors. In order to show the plausibility of an alternative, pluralist conception of human rights obligations I turn to the current debate among scholars of international law regarding the human rights obligations of non-state actors. I document the various ways in which these obligations could be legally entrenched in global financial institutions such as the WTO, the IMF and the World Bank. These examples indicate feasible methods for strengthening the democratic accountability of these institutions while also respecting the accountability that participating member states owe to their own citizens. I conclude that, once the distinctions between the obligations to respect, protect and fulfill human rights are taken into account, no conceptual difficulty remains in holding states and non-state actors accountable for their respective human rights obligations. (shrink)

Democracies and authoritarian regimes have different approaches to international law, grounded in their different forms of government. As the balance of power between democracies and non-democracies shifts, it will have consequences for international legal order. Human rights may face severe challenges in years ahead, but citizens of democratic countries may still benefit from international legal cooperation in other areas. Ranging across several continents, this volume surveys the state of democracy-enhancing international law, and provides ideas for (...) a way forward in the face of rising authoritarianism. (shrink)

A great deal of attention has been paid in recent years to the legality of the actions of states and state agents in international and non-international cyber conflicts. Less attention has been paid to ethical considerations in these situations, and very little has been written regarding the ethics of the participation of non-state actors in such conflicts. In this article, I analyze different categories of non-state participation in cyber operations and undertake to show under (...) what conditions such actions, though illegal, might be morally defensible. (shrink)

Interactions between state, international, transnational and intra-state law involve overlapping, and sometimes conflicting, claims to legitimate authority. These have led scholars to new theoretical explanations of sovereignty, constitutionalism, and legality, but there has been no close attention to authority itself. This book asks whether, and under what conditions, there can be multiple legitimate authorities with overlapping or conflicting domains. Can legitimate authority be shared between state, supra-state and non-state actors, and if so, how (...) should they relate to one another? Roughan argues that understanding authority in contemporary pluralist circumstances requires a new conception of relative authority, and a new theory of its legitimacy. The theory of relative authority treats the interdependence of authorities, and the relationships in which they are engaged, as critical to any assessment of their legitimacy. It offers a tool for evaluating inter-authority relationships prevalent in international, transnational, state and non-state constitutional practice, while suggesting significant revisions to the idea that law, in general or even by necessity, claims to have legitimate authority. (shrink)

Cyber warfare is becoming a new reality with new battles fought everyday on virtual battlefields. For a century and a half, International Humanitarian Law has been a sentry for victims of wars guaranteeing their legal protection from the calamities of war, trying hard to respond to Clausewitz’s “chameleon of war”. Cyber conflict marks new chameleon’s colour together with the unmanned aerial vehicles, autonomic battle systems and other technologies deployed on battlefields. However, it would be greatly erroneous to claim that (...) the International Humanitarian Law may not apply to the new phenomena just because it is caused by the advanced technology. Even if the Geneva Conventions of 1949 are already sixty years old, the International Humanitarian Law in itself has at minimum customary response mechanism, granting, in a spirit of Marten’s clause, protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience (Protocol I). Notwithstanding, some more complicated fundamental issues also have to be addressed: how the use of cybernetic weapons and means may affect the classic notion of armed conflict? How it can be interpreted in the light of new technologies, i.e. can we still rely on a classic understanding of weapon’s kinetic effect as the main element, or shall we embrace effectsbased “Schmitt’s criteria”. If it so happens, will it make an act without apparent damage to a person/property equal to military hostilities, required by the armed conflict notion and justify the real-life response to it. The effective or overall control tests were used for the attribution of non-state actor’s activity to the state party of an armed conflict but these tests might not meet its purpose in the virtual battlefield of loose networks and open-source communities. If the concept of armed conflict is treated more flexibly, other changes (including issues of attribution) may follow, as well. Perhaps this is the way how the combatant institute will evolve. With classic combatant’s criteria impossible to apply on virtual battlefields, one of the options would be to elaborate concepts of “constant combat function” and “direct participation in hostilities” more precisely, as well as to reconsider state’s affiliation requirements. (shrink)

Despite a common agenda of normative analysis of the international order, philosophical work on international political morality and international law and legal scholarship have, until recently, worked at a distance from one another.The mutual suspicion can be traced to different aims and methodologies, including a divide between work on matters of deep structure, on the one hand, and practical institutional analysis and prescription, on the other. Yet international law is a key part of the normative practices (...) ofstates, has a direct effect on state behavior, and, as a meth-odological matter, can contribute to good theorizing onmatters of international ethics. Recently, philosophical workhas demonstrated a greater engagement with the moral aspects of international law. One strand of scholarship has treated the rules of international law as a proper subject for philosophical inquiry. Another has used international legal rules to support moral arguments about aspects of the international order. Future dialogue and cooperation would benefit both fields, in particular on the challenges to global cooperation from nationalism and on strategies for allocating responsibilities among global actors for rectifying global harms. (shrink)

Assembling a series of voices from across the field, this book demonstrates how posthuman theory can be employed to better understand and tackle some of the challenges faced by contemporary international law. With the vast environmental devastation being caused by climate change, the increasing use of artificial intelligence by international legal actors, and the need for international law to face up to its colonial past, international law needs to change. But in regulating and preserving a (...) stable global order in which states act as its main subjects, the traditional sources of international law - international legal statutes, customary international law, historical precedents and general principles of law - create a framework that slows down its capacity to act on contemporary challenges, and to imagine futures yet to come. In response, this collection maintains that posthuman theory can be used to better address the challenges faced by contemporary international law. Covering a wide array of contemporary topics - including environmental law, the law of the sea, colonialism, human rights, conflict, and the impact of science and technology - it is the first book to bring new and emerging research on posthuman theory and international law together into one volume. This book's posthuman engagement with central international legal debates, prefaced by the leading scholar in the field of posthuman theory, provides a perfect resource for students and scholars in international law, as well as critical and socio-legal theorists, and others with interests in posthuman thought, technology, colonialism and ecology. (shrink)

Who ought to do what, and for whom, if global justice is to progress? In this collection of essays on justice beyond borders, Onora O'Neill criticises theoretical approaches that concentrate on rights, yet ignore both the obligations that must be met to realise those rights, and the capacities needed by those who shoulder these obligations. She notes that states are profoundly anti-cosmopolitan institutions, and that even those committed to justice and universal rights often lack the competence and the will to (...) secure them, let alone to secure them beyond their borders. She argues for a wider conception of global justice, in which obligations may be held either by states or by competent non-state actors, and in which borders themselves must meet standards of justice. This rich and wide-ranging collection will appeal to a broad array of academic researchers and advanced students of political philosophy, political theory, international relations and philosophy of law. (shrink)

Book Review: Noam Lubell, Extraterritorial Use of Force against Non-State Actors.

In her paper “Sovereignty and the International Protection of Human rights”, Cristina Lafont argues that “The obligation of respecting human rights in the sense of not contributing to their violation seems to be a universal obligation and thus one that binds states just as much as non-state actors.” In this paper, I argue that one can find support for this claim in Thomas Hobbes’ _Leviathan._ This requires a different reading of _Leviathan_ than the one that is typically (...) performed by realist thinkers, such as, for instance, Morgenthau and Mearsheimer, who read Hobbes as someone who has no regard for human rights. Contrary to the realists, I suggest a reading of _Leviathan_ that shows that there is in fact a normative underpinning of Hobbes’ view of sovereignty, to the extent that Hobbes can be taken to be one of the forerunners of international law. I do this by showing how Hobbes’ reasons for establishing sovereign power, and not his conclusions on how to organize sovereign power, may give support to Lafont’s claim that an obligation to respect human rights is not confined to the sovereign state, but also to extra-state institutions. (shrink)

Transnational corporations have become actors with significant political power and authority which should entail responsibility and liability, specifically direct liability for complicity in human rights violations. Holding TNCs liable for human rights violations is complicated by the discontinuity between the fragmented legal/political structure of the TNC and its integrated strategic reality and the international state system which privileges sovereignty and non-intervention over the protection of individual rights. However, the post-Westphalian transition—the emergence of multiple authorities, increasing ambiguity of (...) borders and jurisdiction and blurring of the line between the public and private spheres—should facilitate imposing direct responsibility on transnational firms. Mechanisms for imposing direct responsibility on TNCs are considered including voluntary agreements and international law. However, I conclude that a hybrid public-private regime which relies on non-hierarchical compliance mechanisms is likely to be both more effective and consistent with the structure of the emerging transnational order. (shrink)

International Law in Context is a pedagogy-forward textbook. It reflects the recent paradigm shift in legal education, which focuses more on what students actually learn rather than the material to which they are exposed. The text aims to prepare the next generation of U.S. lawyers to engage with our interconnected world and to critically evaluate the U.S.'s role within the international legal order. The work is divided into three parts that accomplish these goals. Part One lays a foundation. (...) It covers the various actors within the system, the theories that help explain their behavior, and the principles and sources of law they create. Part Two turns to the fora that define and support the international order, the historical and political contexts that impacted their design, and their efficacy. Part Three is a capstone section that asks students to weave together everything they have learned in Parts One and Two. Students will engage in normative development regarding climate change, including the existing international treaty regime and U.S. implementation options, and the law of war in the modern age. The cornerstone of this book is its organization. The text groups material into conceptual frameworks that promote understanding and retention. For example, rather than consider the various dispute resolution fora in isolation, Part Two asks students to consider them in the context of what types of disputes arise and what legal rules can be employed to resolve them in various international and domestic fora. The institutions also are presented in chronology. In this way, students are encouraged to chart the developmental progression and to make connections and comparisons between various institutions. The use of conceptual frameworks continues within each part. For example, Chapter Six covers the sovereign State as a conflict resolution forum. Under this umbrella, the author discusses (a) State Jurisdiction; (b) The Reception of International Law into the Domestic Sphere; (c) The Qualification as a State Forum or State Litigant (i.e., Recognition of States & Governments); and (d) Protections Afforded Within the Forum: Sovereign, Diplomatic, and Consular Immunity. A typical coursebook might locate this material in four different chapters. The conceptual framework approach, however, allows students to see the big picture and the relationship between concepts. In addition to the frameworks, there are several other innovative pedagogical devices that support student learning. There are Foundation Questions that initially direct readers through the material and cumulatively help students confirm whether they have grasped key takeaways from each section. There also are Assessment Sets in each section, which provide students with immediate opportunities to apply material and gauge their understanding, and "Why Is This Important (a/k/a WITI Moment)" prompts designed to delve deeper into the underpinnings and consequences of various rules. Finally, there are directed reading notes before some more complex readings and margin annotations to keep readers oriented. (shrink)

More than two hundred cities in the United States have now declared themselves to be sanctuary cities. This declaration involves a commitment to non-compliance with federal law; the sanctuary city will refuse to use its own juridical power – including, more crucially, its own police powers – to assist the federal government in the deportation of undocumented residents. We will argue that the sanctuary city might be morally defensible, even if deportation is not always wrong, and even if the federal (...) government is legally permitted to demand that states participate in the process of deportation. We defend this conclusion with reference to a simple, but powerful, norm of international law: that of non-refoulement. As we will discuss, this norm articulates the idea that no state may rightly use its coercive power to move a person into a position in which their basic rights are at risk. We take this norm as a morally defensible principle, and ask what could follow from its acceptance. We argue that this norm has implications for a variety of actors – especially when we notice that those who are facing unjust risks of death are, in general, entitled to use defensive violence against their aggressors. This simple fact, we argue, can help offer a novel defense of the sanctuary city. (shrink)

This article analyses that state responsibility in international law is contractual liability, as a state infringes its obligations to another state (states), stemming out of international law. Member State liability in damages to a private party for breach of European Union law is, contrarily, non-contractual liability to a private party. Having analysed the elements of internationally wrongful act, it is stated that the elements of internationally wrongful act can be used to determine the elements (...) of breach of the European Union law. Thus if an international court declares that a state committed an internationally wrongful act, it would be possible to maintain that the elements of breach of the European Union law are met as well. The author of this article notes that it is very important to identify a particular state institution, which has infringed the European Union or international law, as not attributing to the state the acts of the state institution under the European Union or international law, there should be no possibility to apply state liability in damages to a private party for breach of the European Union law or state responsibility in international law – the state can be liable only for acts of its institutions. This article also analyses the cases where application of both Member State’s liability in damages to a private party for breach of the European Union law and state responsibility in international could be possible. In such case a private party can suffer damages if a Member State breaches an international agreement, concluded by the European Union, imposing particular obligations on that Member State. Therefore, it is ascertained that a private party should not have to prove the second condition of liability – sufficient seriousness of the breach1 – if an international court foremost states that a Member State commited an internationally wrongful act – breached its obligation arising out of an international agreement entered into by the European Union. Such an infringement would be considered to be as sufficiently serious per se. (shrink)

Following an introduction to international law regarding the use of force, the author examines the impact of post-9/11 practice, focusing on the right of self-defence. After critically reviewing operation Enduring Freedom, the U.S. National Security Strategy, the ‘Yemen strike’ and the war in Iraq, including the justifications offered for these actions and the international responses to them, as well as developments in NATO and the EU, he concludes that there is a tendency towards a broader interpretation of the (...) right of self-defence, in that this right may be extended to attacks by non-state actors and such attacks may be more easily attributed to states that support such actors. However, the author submits that this interpretation has not yet been sufficiently affirmed to have changed the law, that the rules of the UN Charter still accurately reflect the law and that there is insufficient support for a right of anticipatory or pre-emptive self-defence. Finally, he recommends strengthening the effectiveness of the Security Council and regional organizations such as the EU and NATO to avoid the risk of a true deregulation of the use of force. (shrink)

Abstract As non-state actors, PMSCs are not embraced by traditional state-dominated doctrines of international law. However, international law has itself failed to keep pace with the evolution of states and state-based actors, to which strong Westphalian notions of sovereignty are no longer applicable. It is argued that these structural inadequacies stand in the way of international regulation of PMSCs, rather than defects in international human rights and humanitarian law per se. By (...) analyzing understandings of legal responsibility, where such structural issues come to the fore, it is argued that, rather than attempting to resolve the essentially ideological dispute about the inherent functions of a state, regulatory regimes should focus on the positive obligations of states and PMSCs, and the interactions between them. Applying the results of this analysis, current and proposed regulatory regimes are evaluated and their shortcomings revealed. (shrink)

This essay discusses some of the ways in which De iure praedae may be understood to constitute a republican text. It is my argument that the 'Commentary on the Law of Prize and Booty' should be firmly located within the over-arching republican discourse of the juvenilia, although the text's republican content is not immediately apparent. On close examination, a republican sub-text is detectible through the author's treatment of the discursive object of the text, the Dutch East India Company , a (...) corporate body. By attempting to legitimate the VOC's natural right to wage just war, Grotius invests a private entity with a public mark of sovereignty. This investiture of a non-state actor with public international legal personality forces a careful reappraisal of two central characteristics of seventeenth-century republican thought: the divisibility of sovereignty, and the fluid demarcation between the 'public' and the 'private' spheres. I conclude that the VOC may be accurately denoted a 'corporate sovereign', an entity whose legal personality is derived from the corporatist principles that underlined early republican and federalist theory. (shrink)

The trend toward the “humanization” of international law reflects a greater emphasis on individuals rather than simply states as objects of concern. The advance of human rights law (HRL) has been an important impetus for this trend. Some observers suggest that humanization can be furthered even more by applying HRL rather than international humanitarian law (IHL) to hostilities between states and nonstate armed groups, unless a state explicitly declares that it is engaged in an armed conflict. This (...) essay argues, however, that a court should not defer to a state's characterization of hostilities, but should base its analysis on whether hostilities meet the criteria for an armed conflict. Applying HRL to hostilities that effectively are an armed conflict but not acknowledged as such risks diluting the legitimacy and normative force of HRL. On the one hand, if a court applies conventional stringent HRL standards, this body of law may be seen as unrealistic and is likely to be ignored. On the other hand, a court that adapts HRL standards to armed conflict may need to take a consequentialist approach at odds with HRL's deontological foundations. Clearly differentiating between HRL and IHL may thus best promote the humanization of warfare. (shrink)

This book explores a hitherto unexamined possibility of justifiable disobedience opened up by John Rawls’ Law of Peoples. This is the possibility of disobedience justified by appeal to standards of decency that are shared by peoples who do not otherwise share commitments to the same principles of justice, and whose societies are organized according to very different basic social institutions. Justified by appeal to shared decency standards, disobedience by diverse state and non-state actors indeed challenge injustices in (...) the international system of states. The book considers three case studies: disobedience by the undocumented, disobedient challenges to global economic inequities, and the disobedient disclosure of government secrets. It proposes a substantial analytical redefinition of civil disobedience in a global perspective, identifying the creation of global solidarity relations as its goal. Michael Allen breaks new ground in our understanding of global justice. Traditional views, such as those of Rawls, see justice as a matter of recognizing the moral status of all free and equal person as citizens in a state. Allen argues that this fails to see things from the global perspective. From this perspective disobedience is not merely a matter of social cooperation. Rather, it is a matter of self determination that guarantees the invulnerability of different types of persons and peoples to domination. This makes the disobedience by the undocumented justified, based on the idea that all persons are moral equals, so that all sovereign peoples need to reject dominating forms of social organization for all persons, and not just their own citizens. In an age of mass movements of people, Allen gives us a strong reason to change our practices in treating the undocumented. James Bohman, St Louis University, Danforth Chair in the Humanities This monograph is an important contribution to our thinking on civil disobedience and practices of dissent in a globalized world. This is an era where non-violent social movements have had a significant role in challenging the abuse of power in contexts as diverse, yet interrelated as the Arab Spring protests and the Occupy protests. Moreover, while protests such as these speak to a local political horizon, they also have a global footprint, catalyzing a transnational dialogue about global justice, political strategy and cosmopolitan solidarity. Speaking directly to such complexities, Allen makes a compelling case for a global perspective regarding civil disobedience. Anyone interested in how the dynamics of non-violent protest have shaped and reshaped the landscape for democratic engagement in a globalized world will find this book rewarding and insightful. Vasuki Nesiah, New York University. (shrink)

Fitzpatrick’s writing on international law did not constitute the main focus of his oeuvre. However, the determinate-responsive nature of law that characterised so much of his work did extend to an analysis of the generative force of international law. This article picks up on commentary from Modernism and the Grounds of Law (2001) and ‘Latin Roots’ (2010), among other contributions, to test this generative force of international law, which Fitzpatrick identifies as a necessary affirmation of the movement (...) between the ‘determinate but not ultimately determinate’ sovereignty of a singular nation state and the ‘illimitably responsive but not ultimately responsive’ force of the community (Fitzpatrick 2010, p. 46). We test Fitzpatrick’s view of international law through two examples of un-recognised states and the mechanism of non/recognition utilised by the international legal community to determine what constitutes a singular nation-state for participation in the community of international law. Our two case studies, North Cyprus and Crimea, illuminate the continuing relevance of Fitzpatrick’s schema. Through non/recognition, ‘states’ that are included-as-excluded participate in the ongoing affirmation of an international legal ‘community’, a community that continues to be constituted through the affirmation of imperial power. (shrink)

There are barriers of perception between Sudanese Muslims for whom the sharia is a source of authority and identity and others who see it as an oppressive means of dominating Sudan's minority populations. I make a distinction between process and substance in law, and show that a flawed process has contributed to a perception of international law as an instrument of powerful states, which has obscured its legislative and procedural usefulness to the Sudan as a member of the United (...) Nations. Similarly a distortion of due process in Sudan's sharia has created a substance derived from the legacy of medieval Arabia rather than applied legal methodology. One consequence of this is that Sudan's Civil Wars have been given the attributes of offensive jihad against its diverse non-Muslim populations. I argue that offensive jihad was a legal construction designed to meet the challenges of medieval Arab society, with little basis in the fundamental sources of Islamic law or in contemporary legal methodology. I advocate a return to due process as a partial solution to the impasse between Muslim and non-Muslim identities in the Sudan, and show how international law can be improved by accommodating other legal traditions. (shrink)

This chapter discusses the application of international humanitarian law (IHL) to EU military operations outside of the European Union (EU). It describes where the Union has performed best: promoting the development, acceptance, and respect of IHL by others. EU restrictive measures may be taken in its commercial policy, its foreign and security policy, and its development cooperation policy. A field in which the European Union may have a direct impact on violations of IHL is the export of arms. EU (...) member states continue to be involved in armed conflicts, but EU law did not govern their involvement. Therefore, the relationship between IHL and EU law is fortunately not (yet) an issue of daily concern for practitioners and EU institutions. In the instances in which the European Union has been a military actor abroad, IHL arguably did not apply because the Union had not become a party to an armed conflict. (shrink)

The book provides an overview of how international law is today constructed through diverse macro and microprocesses that expand its traditional subjects and sources, with the attribution of sovereign capacity and power to the international plane (moving the international toward the national). Simultaneously, national laws approximate laws of other nations (moving among nations or moving the national toward the international), and new sources of legal norms emerge, independent of states and international organisations. This expansion occurs (...) in many subject areas, with specific structures: commercial, environmental, human rights, humanitarian, financial, criminal, and labor law contribute to the formation of postnational law with different modes of functioning, different actors, and different sources of law that should be understood as a new complexity of law. (shrink)

Lebow demonstrates that foreign policies consistent with generally accepted ethical norms are more likely to succeed, and those at odds with them to fail. Constructing original data sets and analyzing multiple case studies, Lebow makes an empirical case for ethics in international relations. His approach looks to create a productive dialogue between those who ask primarily 'ought' questions and those who pose 'is' questions. The former want to establish appropriate criteria for the behaviour of state and non-state (...) actors and the discourses that lead to their policy decisions, whereas scholars who pose 'is' questions are concerned with how political actors behave and the principles and assumptions that might explain their behaviour. Lebow bridges the gap between 'is' and 'ought' questions by making an instrumental argument in favour of ethical foreign policy. He examines policymaking as well as policy, offering ethical guidelines for policymaking that are likely to result in more successful policies. (shrink)

Mobilising International Law for 'Global Justice' provides new insights into the dynamics between politics and international law and the roles played by state and civic actors in pursuing human rights, development, security and justice through mobilising international law at local and international levels. This includes attempts to hold states, corporations or individuals accountable for violations of international law. Second, this book examines how enforcing international law creates particular challenges for intergovernmental regulators seeking (...) to manage tensions between incompatible legal systems and bringing an end to harmful practices, such as foreign corruption and child abduction. Finally, it explores how international law has local resonance, whereby, for example, cities have taken it upon themselves to give effect to the spirit of international treaties that national governments fail to implement, or even may have refused to ratify. (shrink)

International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality (_lex praevia_, _scripta_, and _stricta_ – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying _ex post facto_ criminal laws. This approach, the relaxation of the (...) concept of law by including norms whose existence is doubtful, has apparently served to maintain a concept of strict legality, but it is unsatisfying (Sect. 2). In my opinion, the strict principle of legality that has linked its absolute validity to the positivity of law is not the correct premise. It makes sense to state that positivity and validity do not necessarily go hand in hand (Sect. 3). Applied to ICL, this means that it is neither necessary nor convincing to “conceal” supra-positive law as positive law, as some decisions of the international criminal tribunals do. For this reason, I consider that Radbruch’s formula, consisting in admitting that there are supra-positive limits which positive law must respect in order to be valid, is well-founded (Sect. 4). The path taken by this significant philosopher of law is methodologically convincing, and it squarely faces the problem of the value of positive law. Nevertheless, if we admit Radbruch’s formula and thereby the limited value of positive law (if we claim that the validity of the law depends on it respecting supra-positive minimums of justice), we must also face the problem of the definition of supra-positive values, the epistemological difficulties of having access to them (Sect. 5), and the question of the scope and enforceability of supra-positive law (Sect. 6). In summary, this article aims to explain why Radbruch’s formula offers a convincing conceptual basis for international criminal legality and, in doing so, aims to contribute to the discussion about the foundations of ICL. (shrink)

This book represents a unique endeavor to elucidate the story of Kosovo's unilateral quest for statehood. It is an inquiry into the international legal aspects and processes that shaped and surrounded the creation of the state of Kosovo. Being created outside the post-colonial context, Kosovo offers a unique yet controversial example of state emergence both in the theory and practice of creation of states. Accordingly, the book investigates the legal pathways, strategies, developments and policy positions of (...) class='Hi'>international agencies/actors and regional players (in particular the EU) that helped Kosovo to establish its independence and gradually acquire statehood. Although contested, Kosovo, and its quest for statehood, represents a unique example of successful unilateral secession. The book therefore explores and analyses patterns of state formation and nation-building in Kosovo, and its transition to democracy. It presents a three-level assessment. First, seen from a historical perspective, the book examines the validity of the right of Kosovar-Albanians to self-determination and remedial secession. Second, from a legal positivist perspective, it scrutinizes all of the legalist arguments that support Kosovo's right to statehood, and claims that both traditional and legality-based criteria for statehood remain insufficient to determine whether Kosovo has achieved statehood. Third, from a post-factum perspective, the book analyzes the scope and extent to which the internationally blended element was decisive in Kosovo's state-formation and state-building processes. It explains how the EU's involvement as an 'internationally blended element' in Kosovo's efforts to achieve statehood was instrumental and played a crucial role in shaping the emerging state. In particular, the book elaborates on how the EU was able to streamline its mode of intervention in the context of state-building and reform. (shrink)

This article asks how military ethics should respond to adversaries deliberately conducting hostilities below the threshold of war. Three options are considered: a novel, limited force paradigm; an expanded hostilities paradigm, i.e., within the law of armed conflict; and an international law enforcement paradigm derived primarily from human rights law. None is problem-free. Mindful of under-deployed classic just war reasoning arguments for discrimination between vices opposed to peace, this article argues against an expanded hostilities paradigm and shows that the (...) retributive, ‘equilibrium of justice’ test used sometimes to support such an expansion is necessary but not sufficient. It explains the need for further examination of whether/how Aquinas and his interpreters can/should conceive of actions under the paradigm of war occurring against non-state actors. (shrink)

Global Governance Futures addresses the crucial importance of thinking through the future of global governance arrangements. It considers the prospects for the governance of world order approaching the middle of the twenty-first century by exploring today's most pressing and enduring health, social, ecological, economic, and political challenges. Each of the expert contributors considers the drivers of continuity and change within systems of governance and how actors, agents, mechanisms, and resources are and could be mobilized. The aim is not merely (...) to understand state, intergovernmental, and non-state actors. It is also to draw attention to those underappreciated aspects of global governance that push understanding beyond strictures of traditional conceptualizations, and that offer better insights into the future of world order. Three sections enable readers to appreciate better the sum of forces likely to shape world order in the near and not-so-near future: "Planetary," changes wrought by continuing human domination of the Earth and by war; current and future geopolitical, civilizational, and regional contestations; and life in and between urban and non-urban environments. "Divides," including threats to human rights gains; the plight of migrants; those who have and those who do not; persistent racial, gender, religious, and sexual-orientation-based discrimination; and those who govern and those who are governed. "Challenges," of food and health insecurities; ongoing environmental degradation and species loss; the current and future politics of international assistance and data; and the wrong turns taken in the control of illicit drugs and crime. Designed to engage advanced undergraduate and graduate students in international relations, organization, law, and political economy as well as the general reader, this book invites readers to adopt both a backward- and forward-looking view of global governance. It will spark discussion and debate as to how dystopic futures might be avoided and change agents mobilized. (shrink)

This Reflection starts from the ongoing COVID-19 pandemic as unprecedented occasio to reflect on the approach to international law, which—it is contended—is anthropocentric, and its inadequacy to respond to current challenges. In the first part, the Reflection argues that there is, more than ever, an undeferrable need for a change of approach to international law toward ecocentrism, which puts the environment at the center and conceives the environment as us, including humans, non-human beings, and natural objects. To encourage (...) the incorporation of ecocentrism in the entire discipline, the Reflection will rely on some insight of ecofeminism, whose potential has not been fully investigated in international legal scholarship. In the second part, the Reflection illustrates what an eco-centric international law would mean, imagining three possible applications: first, what the author has called environmental global health, which is connected to the current pandemic and puts into question the proposals dealing with global health that completely miss the theorization of the environment as a whole; second, how actors of international law would change according to an eco-centric perspective; and, third, how the rules prohibiting the use of force might be reconceptualized. The analysis contained in these pages cannot itself exhaust all the possible nuances of the legal reasoning, but it is aimed at being a provocative starting point for a change in the mindset and approach of international legal scholarship. (shrink)

Prominent recent scholarship in global political justice has focused on creating conceptual space for international NGOs ? and sometimes also corporations and states ? as fully-fledged participants in global governance. While acknowledging the achievements of international non-state actors, I argue that core global governance tasks ? of global distribution, regulation or administration ? should not be assigned to them. Drawing from neo-republican theory, I contend that such actors fall short of the formal criteria that are (...) necessary for constituting a global public actor, because they do not have a global function and orientation. The distinction between public and private actors matters, since it conditions our expectations for them: both categories of actors are asked to avoid dominating individuals, but public actors must, in addition, protect individuals from third-party domination. (shrink)

International and domestic law offer a study in contrasts: States' legal obligations often depend on their consent to specific international legal norms, whereas domestic law applies to individuals with or without their consent; enforcement in international law is weak and, for many international treaties, non‐existent, whereas states spend considerable resources to create centralized coercive enforcement mechanisms; and international law is characterized by much less institutional differentiation and specialization of functions than domestic legal systems are. These (...) differences have invited a number of skeptical challenges to international law, 3 of which we explore in this essay. The first points to 1 or more of the deviations of international law's institutional structure from that of a modern state's legal system as a basis for denying that international law is really “law.” Central to the debates over international law's status as law are concerns about whether and why the concepts of law inherited from domestic legal systems should serve as the blueprint for theorizing law in general and international law in particular. The second skeptical challenge targets international law's legitimacy. It claims that we lack reasons to treat international legal norms or the exercise of political power by international institutions, as anything other than an attempt by states to advance their national interests. If this challenge succeeds, states and other subjects of international law have merely prudential reasons to comply with it rather than a moral duty to obey it. Following a brief description of recent debates over how we ought to understand the concept of legitimacy when used to assess international political practices or global governance, we survey several possible bases for a moral duty to obey or respect international law. These include state consent, instrumental accounts of legitimate authority, and global democracy. The third set of challenges focuses on the relationship between state sovereignty and international law. International rules and institutions often make demands for reform affecting the domestic law of a state in order to elicit compliance with international law. Skeptics argue that the rule of international law is incompatible with states' political self‐determination. Regardless of whether their defense of this claim ultimately succeeds, thoughtful engagement with it may well require us to rethink some of the fundamental concepts and normative ideals in political philosophy, including state sovereignty, democracy, individual rights, political authority, and political obligation. (shrink)