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This chapter contends that international law is structured in ways that systemically reinforce ecological harm. Through exploring the cultural milieu from which international environmental law emerged, we argue it produced an impoverished understanding of nature incapable of responding adequately to ecological crises. Many of international law’s basic concepts, such as sovereignty, jurisdiction, territory, development and human rights, have evolved in trajectories unsuited to perceiving or respecting ecological limits. International law treats nature as a resource for wealth generation and environmental degradation as an economic externality to be managed through special regimes. This chapter traces the coevolution of such assumptions about nature alongside formative disciplinary concepts, arguing that such understandings have been central to making international law, and that the discipline helps universalise and normalise them. Thus, to engage with environmental challenges, disciplinary tenets would have to evolve in directions that radically transform the nature of law.
Can territory be decolonised? In one crucial sense, the answer is yes. In a moment when the ‘threat of recolonisation haunts the third world’, the battles fought by the anti-colonial movements of the twentieth century for official recognition of political independence should not be disremembered, or their gains underestimated. But can the concept of territory be decolonised? Building on TWAIL, Indigenous and decolonial scholarly interventions, this chapter revisits the international law of territory to argue that there are two senses in which the question must be answered in the negative. The concept of territory is a Eurocentric construction of the rightful relationship between community, authority, and place. Not only does that construction rely on the ontological rupture between human subject and natural object that characterises European Enlightenment philosophy; it erases the physical Earth itself, replacing it with an abstract object over which sovereignty is exercised or space within which jurisdiction is asserted. The concept of territory in international law thereby presumes the objectification of ‘nature’ necessary for the propertisation and commodification of Earth.
This chapter examines the relationships between representations and operations of sovereignty in natural resource governance. We advance a ‘political ecology of sovereignty’, examining the participation of non-state actors in resource governance processes. We particularly argue that processes of integrating subaltern populations through mapping local ecological knowledge can modify effective governance practices while nonetheless reproducing the legibility of state sovereign authority and its territorial boundaries. Exploring the Enbridge Northern Gateway pipeline in Canada, we suggest that state jurisdictional authority is secured through incorporating Indigenous interests as a delimited geography of tradition. Examining the Hatgyi hydroelectric development along the Thai–Myanmar border, we argue that the territorial boundaries of those nation-states are rearticulated through the governance of this transboundary development. Through these cases, we demonstrate how the insertion of local knowledge works not only to reconfigure effective governance processes but also to reinforce the effect of state sovereignty in new ways.
The relevance of broader public policy considerations in the sovereign debt discourse cannot be ignored given the rise of the perception of sovereign default as a global concern. Recent literature tries to introduce a public law or policy perspective into the sovereign debt discourse, such as the theory of international public authority, l’ordre public de la dette souveraine and an incremental approach. As a matter of judicial interpretation, however, public policy arguments as such cannot override the text of the contract or treaty provisions in force. A better approach will thus be to examine whether and to what extent the applicable contract, statutory and treaty provisions afford such public policy considerations through interpretation in such a manner that practical solutions to holdout problems are deduced without losing the balance between bondholder protection and respect for sovereign debt restructuring.
This article analyses the disregarded notion of the ius legationis (right of legation), revisiting historical debates in diplomatic theory and law over who possesses or ought to have this right. By examining how the ius legationis manifested into a volitional or subjectional or natural right, we argue that this renders it not merely a legal issue, but a highly political and ethical question that is of direct relevance to contemporary international relations. In an era where inclusivity is rhetorically promoted at the United Nations, we suggest that a rekindled right to diplomacy (R2D) – conceiving diplomacy as a right that is claimed but also contested – can shed light onto inequalities of representation and the role international law can play in remedying asymmetries and ethicizing the practice of diplomacy. Beyond its primary normative contribution, we argue that the R2D can also provide an analytical framework to understand UN's efforts at institutionalizing diplomatic pluralism, its logics of inclusion and exclusion, as well as the struggles of diverse groups to obtain accreditation, consultative status, and negotiation ability within multilateral diplomacy.
This chapter examines the entitlements of different entities, such as States, peoples and other groups, international organisations and individuals over energy, understood as resources converted into products through a range of activities relying on certain technologies. International law contains rules which confer such entitlements and organise allocation among competing uses. Such rules are the legal infrastructure upon which international energy transactions are organised. The chapter then discusses other rules, which organise the cross-border movements necessary to access resources where they are located and process them – through certain activities and technologies – for consumption in the form of products in other countries. Enabling access and protecting the processes of conversion and transfer are key aspects of a range of rules governing foreign investment, trade and transit relating to energy.
This chapter concretizes this book’s theoretical and analytical arguments by analyzing two transformations in the political history of the English East India Company (EIC). First, I show that key to the EIC’s success were public/private hybrid relations ranging from contractual, institutional, and shadow configurations. Contractual hybridity was visible through formal and frequent charter negotiations and public exchange of forced loans and other fiscal extractions. Institutional hybridity was evident through the EIC benefiting from insider rules and the rise of MP-Directors as well as more sophisticated informal lobbying. Shadow hybridity materialized through side payments and the presence of back channels through the Secret Committee. Second, the EIC’s self-understanding of sovereign authority shifted from a privilege understood within Idealized Sovereignty to a self-possessed right from extensive enactments of Lived Sovereignty. Meanwhile, the EIC’s sovereign awakening revealed problems with mutually inclusive and nonhierarchical early modern sovereignty that were thus far ignored.
The law of responsibility has been subject to massive change over the past centuries. While in key areas such change is well-established in the form of customary law or general principles, for particular transformations the process of change is more difficult to pin down. Major examples are the transition from a private to a public law model and from independent to shared responsibility, where the depth and scope of change and its support in practice remains uncertain. The author argues that the normal rules for determination of change in international law, reflected in the sources of international law, are not always helpful for determining change in the law of responsibility. To understand such change, it is helpful to distinguish change in secondary rules from change in primary rules (substantive rights and obligations) and tertiary rules (procedures and institutional rules for implementing responsibility). Change in the law of responsibility is to some extent driven by prior changes in primary rules, but it is also argued that secondary rules have a logic and justification that is to some extent independent from primary rules.
This chapter introduces the main argument of this book that global sovereign power is constituted by public/private hybridity in Lived Sovereignty, while sovereign authority is recognized as indivisibly public in Idealized Sovereignty. Public/private hybridity takes on different characteristics of contractual, institutional, and shadow forms based on the formalization and publicization of relations. In relation to hybrid sovereignty, the lived realities of different types of public/private hybridity are in tension with the idealized imperatives of determining what is public versus private.
This chapter theorizes that sovereignty is the interplay of two contrasting modalities. In Idealized Sovereignty, sovereign authority is represented exclusively in “the state” per the doctrine of indivisibility developed by early modern theorists and reified in IR theory. In Lived Sovereignty, achieving sovereign competence involves divisible practices of state and nonstate actors in a variety of social relations. We would do a disservice to sovereignty’s complexity if only one of the two modes persevered in analyses of sovereignty. Instead, the chapter intervenes in major IR debates to argue that sovereignty should be hybridized. This overarching framework guides the ideal-types of public/private hybridity developed in the next chapter and the empirical analyses in the remainder of this book, where hybrid sovereignty is necessary to build a global empire, go to war, regulate global markets, and protect rights.
This chapter illustrates the forms and dynamics of contractual hybridity in American wars using the case of Blackwater. Blackwater’s contractual hybridity was visible in its formal contracts with public funding. Contractual relations created power payoffs by deploying a contractor force for American wars and raised Weberian legitimacy dilemmas from limited contractor oversight and distributed accountability. Security contractors also disturb civilmilitary relations by posing as “civilian combatants” or “unlawful combatants,” depending on the preferred definition under international law. The chapter also follows bureaucratic debates on defining "inherently governmental functions" given contracting, which reveal the effort it takes to balance Idealized and Lived Sovereignty. By being attentive to formalized and publicized hybrid relations, the chapter thus wrestles with unique problems in sovereign governance that challenge the legitimacy of a sovereign authority that contracts itself.
International responsibility law today is in great need of theorizing or, at least, that is the present volume’s argument. This introduction sets the stage for that argument. It unfolds in four steps: first, it clarifies the reasons that led to putting this collection of essays together and explains what it hopes to achieve; second, it introduces the main theoretical challenges addressed in the volume; third, it provides some information about how the book is organized; and, finally, it sketches out the content of its successive chapters and their articulation.
This chapter argues that Amnesty International’s chief sovereign accomplishment in Lived Sovereignty is organizing a global human rights polity from disparate transnational publics. However, shadow relations between Amnesty and governments related to funding, country access, and negotiating reforms in its first two decades threatened to derail the moral purity that undergirds the protection of human rights in Idealized Sovereignty. Successfully navigating shadow hybridity has thus been a central yet understudied feature of Amnesty. The historical analysis contextualizes the difficult choices Amnesty made to become the world’s leading INGO. Amnesty thus helps us see that hybrid relations endure even when the stakes are very high, exemplifying the pervasiveness of hybrid sovereignty in global politics.
This chapter develops the analytical dynamics of public/private hybridity in Lived Sovereignty. It first situates public/private hybridity in the global governance literature and then introduces three ideal-types. Contractual hybridity features formal and publicized performances where sovereign power is negotiated in public/private contractual exchanges. Institutional hybridity features informal and partly publicized performances where sovereign power is negotiated through public/private institutional linkages. Shadow hybridity features nonformalized and nonpublicized performances where sovereign power is negotiated in public/private shadowy bargains. Finally, the chapter presents a Weberian-inspired research design to show off the three ideal-types in the empirics that follow.
This chapter examines institutional hybridity in the International Chamber of Commerce’s (ICC) regulatory prowess as the primary organized business interlocutor for intergovernmental bodies in global commerce. The empirics follow various ways in which the ICC embeds itself in global institutions through issue-definition, agenda-setting, and rulemaking. Institutional linkages allow the ICC to organize international markets while boosting the privilege of global corporate elites to reap the benefits of trade and investment at the expense of others. Balancing the legitimacy blowbacks to this elitism is at the core of the politics of institutionalizing rules for global commerce. Moreover, the study of the ICC helps us see that “transnational private authority” need not necessitate a retreat of the state, but rather a recomposition of what it means to regulate across borders. The ICC’s Lived Sovereignty relies fundamentally on the Idealized Sovereignty of governments to keep its institutional status.
This chapter provides an opportunity to engage in analysis of contemporary Australian politics and question some of the challenges chosen for further discussion in this chapter. It also aims to bring together much of the discussion through the previous 12 chapters. By highlighting some of the problems Australia faces, including climate change, a global refugee crisis, and a global pandemic, our goal is not to suggest that Australian democracy is broken beyond repair. All nations face similar issues, and so Australia is not unique in that sense. Indeed, we might still argue Australia is Donald Horne’s The Lucky Country – in both the sense of being ‘lucky’, and in the sense Horne intended it (Horne, 2008). But it is only by analysing the challenges we as a nation face, that students of Australian politics can truly evaluate the future of Australian democracy.
Sovereignty always relies on a double movement of violence and care. It requires the power to exercise violence as well as the capacity to care, to protect, and to nourish. In the footsteps of Foucault and Agamben, numerous scholars have rediscovered the same paradox in philosophical and legal texts. Anthropologists writing about informal and practical sovereignty pay attention to violence, but sometimes ignore the importance of care for the exercise of sovereignty. Against such tendencies to focus on texts and on violence, this article deals with sovereignty as care. The concrete examples are the relationships of care between commanders, soldiers, and villagers in the Wa State of Myanmar, a de-facto state governed by an insurgent army. In the absence of an effective government bureaucracy, popular sovereignty in this military state relies on a particular logic of personal relations, in which care is central. Subordinates have to care about leaders, whereas leaders are supposed to care for subordinates. Care provides the balance and foil for the exercise of violence, and both are necessary for the exercise of sovereignty. The combination of violence and care in personal relations is scaled up to create “the people” as the subject and object of sovereignty. The article describes the logic of personal relations that allows for the exercise of popular sovereignty in the Wa State and elsewhere.
Chapter 6 presents the second of the three case studies: Protecting the Individual Human Being from Mass Atrocities. The case study offers a critical discussion of the literature and the development of R2P. The chapter then analyses the discourse on Libya and Syria concerning actions to protect civilians and the potential use of force to do so. The analysis focuses mainly on UN Security Council deliberations. Finally, the chapter demonstrates how the individual human being appears in the discourse on protection as innocent civilians or guilty perpetrators or terrorists. As will be demonstrated, this matters for enabling a politics of protection. By analysing the debate on the intervention in Libya in 2011 and dealing with the conflict in Syria, mainly focusing on the years 2011 to 2015, respectively, I demonstrate how these politics of protection play out
The idea of 'hybrid sovereignty' describes overlapping relations between public and private actors in important areas of global power, such as contractors fighting international wars, corporations regulating global markets, or governments collaborating with nongovernmental entities to influence foreign elections. This innovative study shows that these connections – sometimes hidden and often poorly understood – underpin the global order, in which power flows without regard to public and private boundaries. Drawing on extensive original archival research, Swati Srivastava reveals the little-known stories of how this hybrid power operated at some of the most important turning points in world history: spreading the British empire, founding the United States, establishing free trade, realizing transnational human rights, and conducting twenty-first century wars. In order to sustain meaningful dialogues about the future of global power and political authority, it is crucial that we begin to understand how hybrid sovereignty emerged and continues to shape international relations.