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Legal scholars rely heavily on vocabularies of ‘actors’, ‘agents’, and ‘experts’ to account for the fact that law does not develop by itself. However, the identities, idiosyncrasies, and individual professional contributions of law's people are rarely illuminated. This article suggests that the relative absence of people in transnational legal scholarship helps to explain some of its gaps. The task of bringing ‘human actors back on stage’ creates some new opportunities for transnational environmental law scholarship. It invites attention to both dominant and excluded voices. It offers a way of bridging the gap between the bureaucratic language of law and its lived reality. It also provides an understanding of why, despite ferocious attempts to roll back the advances of environmental law in some places, many scholars and practitioners find reason to be optimistic about the future of environmental law.
This chapter engages with theories of global governance and private regulation to explain how and why standards support what I call a transnational hybrid authority. It shows that the notion of hybrid is mostly used as a default attribute to accommodate multiple and contradictory policies of global governance. Supplementing international political economy literature with semiotics, science and technology studies, and post-colonial studies, I argue that the concept of hybrid allows for seeing such ambiguity as an ontological attribute transforming the relationship between transnational capitalism and territorial sovereignty. Ambiguity thus imbues not only the status of the actors involved in standardisation and regulation but also the scope of the issues on which they operate and the spaces on which they exert their authority. The chapter outlines the analytical framework of the book including the three dimensions of actors setting standards, the scope of the standards and space on which such authority is recognised.
Outer space is becoming a more accessible and less expensive domain in which to operate. Consequently, growing numbers of state and non-state actors (NSAs) are operating in, to, and through space. At the same time, instances of space-based and ground-based interference with space systems are also increasing, disrupting crucial space-supported services and applications relied on by millions, with great financial and operational costs. The increased participation of NSAs in space activities raises particular concerns, especially the threat of intentional interference with space systems by nefarious actors like terrorist organizations. It also requires consideration of whether states bear responsibility and/or liability for the acts of NSAs with a nexus to those states. At first glance, it is tempting to conclude that one or more normative legal regimes would apply. The potential regimes include international space law, international telecommunications law, and the law of state responsibility. On further examination, however, when it comes to interference, there appears to be no effective legal mechanism to hold states accountable for NSA interference with space systems, which can be exploited by NSAs and challenge efforts by states to enforce “good” behaviour.
REDD+ – an incentive mechanism to reduce deforestation and associated greenhouse gas emissions in developing countries – was developed under the United Nations Framework Convention on Climate Change (UNFCCC) and subsequently included in the Paris Agreement. Its early implementation activities have highlighted the role of certain intergovernmental actors: REDD+financing initiatives, including the World Bank’s Forest Carbon Partnership Facility and Forest Investment Programme, and UN-REDD, a collaborative programme involving three agencies of the United Nations. By setting conditions for the provision of support for REDD+, these initiatives have actively and influentially engaged in REDD+rule making. This article focuses on the regulatory landscape for REDD+and examines rules developed under the UNFCCC and elaborated by the REDD+financing initiatives, using examples from the Latin American region. The analysis shows that informal lawmaking plays a more relevant role in REDD+rule making than international formal law, and has demonstrated legal and practical effects. However, informality can also tilt power relations between donor and recipient countries, which could jeopardize the legitimacy of transnational rule making.
Can a few primarily Western States expand the right to self-defence against non-State actors, incorporating the unwilling or unable standard? Even on a traditional reading of customary law formation, the answer is no because proponents have failed to attract consistent and widespread support. What is more, using our interactional international law approach, we show that efforts to date have not been successful because they have failed to address fundamental rule of law concerns. The current state of world politics has perhaps caught proponents of the unwilling or unable standard in a difficult bind. We suggest how proponents might carefully develop the law on self-defence against non-State actors.
One of the central assumptions underlying the stakeholder model is that strengthened opportunities for involvement of non-state actors in political procedures hold significant promise for making those procedures more democratically legitimate. However, recent studies show that more open international organisations (IOs) are not perceived as more legitimate by non-state actors. In this article we explore one potential reason to explain this apparent paradox, investigating whether, and under what conditions, strengthened opportunities of stakeholder involvement enable the effective representation of global constituencies. The article shows that globalisation and politicisation of IOs go hand in hand with greater political activity by non-state actors defending domestic, rather than global, interests. Globalisation and politicisation may thus contribute to the exponential growth of the community of non-state actors active at IOs, but they do not make such community more globalised in nature. The article also illustrates that granting greater access to stakeholders in international institutions can somehow mitigate the effects of this underlying structural factors, and that institutional openness disproportionally fosters political activity by civic, rather than business, global stakeholders. We advance these arguments relying on a novel dataset including over eight thousand organisations active at the UN climate conferences and the WTO Ministerial Conferences.
Corporations have taken on an expansive role in the global community with transnational operations, extensive resources, power and influence, and significant environmental and human rights impacts. While corporate social responsibility (CSR) has developed standards and practices aimed at addressing the social responsibility of corporations, its legal effect, if any, is unclear. In part, this can be linked to the lack of status and direct accountability for corporations in international law. This article seeks to carve out a space for corporations in which the realities of their power and impact can be acknowledged, addressed, and managed. It suggests that this can be accomplished through the recognition of corporate customary international law. This corporate customary international law would apply the well-developed law-creation processes of traditional state-based customary international law to businesses. Employing CSR as a practical example, the article suggests that not only is corporate customary international law a theoretical possibility, but its elements can already be seen in the development of CSR. Ultimately, this article aims to show how customary international law, which is an existing tool of international law formation, can be used to bridge the gap between the traditional and contemporary international systems and increase opportunities for businesses to fulfil ethical and legal obligations and to be held accountable for environmental and human rights harms.
This review of Non-State Actors in International Law, edited by Math Noortmann, August Reinisch and Cedric Ryngaert (Hart Publishing, 2015), focuses on the constraints of state-centric approaches in accurately depicting the role and status of non-state actors in the international arena. As the book presents a comprehensive examination of the influence of diverse entities in a variety of fields, such limitations are evidenced and inevitably lead to the reassessment of novel theoretical standpoints, as well as to the recognition that a multidisciplinary approach is much needed in order to advance further studies on the issue.
In light of a recent shift in dialogue to hard law standards in the domain of business and human rights, this article provides an in-depth examination of the viability of a business and human rights treaty. It seeks to advance a valid theoretical model for a treaty that directly addresses non-State actors, explores the allocation of responsibility among multiple duty-bearers, and contemplates the scope, content, and enforcement of the potential obligations. By supplementing this analysis with analogies drawn from existing treaty regimes, the article aims to contribute positively to the normative development of international law in the field.
This article examines the manner in which ‘macro’ legal analysis can potentially assist in overcoming some of the issues that are faced in the understanding and development of global environmental governance (GEG). It argues that the analysis of law through separate and distinct disciplines – such as environmental law, trade law, corporate law, and human rights law – results in what this article refers to as ‘micro’ legal analysis. As such, it contends that this can have the effect of creating obstacles in the development of coherent and effective legal and policy choices related to the protection of the environment. It illustrates these arguments with examples of practical problems that have arisen from the separation of legal issues in practice and provides the theoretical underpinnings, based on the critique of international lawyers, for the application of ‘macro’ legal analysis. In other words, it argues for a form of analysis that would consider the entire range of relevant legal disciplines in a unitary process. It then provides a methodology for the development and application of ‘macro’ legal analysis in relation to environmental issues. Finally, it considers the potential that this approach could have within the field of GEG and comments on the implications that it could have for the way in which lawyers are trained in the future.
The right of self-defence against non-state actors is increasingly invoked and accepted in the practice of states. However, the recognition of this right must overcome a fundamental obstacle: that of explaining why the rights of the host state, in particular its right of territorial sovereignty, is not infringed by the self-defensive force used within its territory. In practice, states invoking self-defence against non-state actors rely on the involvement of the host state with those actors to justify the use of force in that state's territory. It is not clear, from a legal standpoint, how to rationalize the fact of involvement as a form of legal justification. For some, involvement amounts to attribution. For others, involvement is a form of complicity. For others still, involvement may entail a breach of the host state's due diligence obligation to protect the rights of other states in its territory. All of these solutions are deficient in some way, and have failed to receive general endorsement. This article considers whether there may be a different, as yet neglected, solution: self-defence as a circumstance precluding wrongfulness. The article shows that this is not a perfect solution either, since positive law remains uncertain on this point. Nevertheless, it is a solution that may provide a better normative framework for the development of the law of self-defence against non-state actors.
This article examines the law of self-defence as applied to non-state attacks in light of the coalition air strikes against ISIL in Syria. It critiques the two current interpretations of the law of self-defence – one based on attribution and the other on the ‘unable or unwilling’ test – for failing to address adequately the security threat posed by non-state actors or for not addressing convincingly the legal issues arising from the fact that the self-defence action unfolds on the territory of another state. For this reason, it proposes an alternative framework which combines the primary rule of self-defence to justify the use of defensive force against non-state actors, with the secondary rule of self-defence to excuse the incidental breach of the territorial state's sovereignty.
International human rights law may serve as a language through which lawyers and others describe the harms resulting from corruption, but this approach has significant limitations as a legal framework. Despite a growing emphasis among scholars and practitioners on a human rights approach to the problem of corruption, this body of law does not provide a strong basis for addressing such conduct. International human rights treaties make no mention of corruption, and human rights treaty bodies have not brought conceptual clarity to the question of how corruption violates or undermines human rights. Given that human rights law binds States alone, it is also ill-suited to a phenomenon that typically occurs at the intersection of the public and private sectors. Even as a language for describing how corruption harms social and economic rights, human rights law has its limitations, some of which come into relief when compared with the field of development economics.
This paper discusses non-State actors’ motivation and capacity to develop and use chemical, biological, radiological or nuclear (CBRN) improvised weapons in attacks, as well as the possible consequences of such use. Six types of groups have been identified as potential CBRN weapons users that may increasingly be able to acquire relevant CBRN weapons-related knowledge, skills and possibly materials. As technical barriers still form a gap between the theoretical possibility and the operational reality, any potential future CBRN attacks would most likely be crude, low-level attacks, including chemical or radiological materials. CBRN attacks carried out by non-State actors in the future are likely to be more disruptive than destructive.
This contribution investigates restrictivist reasoning on the origin of armed attacks, and concentrates on the interpretation of Article 51 of the UN Charter and the use of state practice. One particular aspect is examined: the linkage of the armed activities of non-state actors to a state required for an exercise of the right of self-defence to be justified in relation to that state. Many authors have moved away from a restrictive interpretation of Article 51 of the Charter and customary international law, and have proposed various legal constructs –complicity, aiding and abetting, harbour and support, unwillingness or inability to act– to allow for the invocation of self-defence even when armed activities of non-state actors cannot be attributed to a state and its substantial involvement is doubtful. Noticeable among authors generally, with certain exceptions, is a certain lack of concern to account for whatever method of interpretation or analysis they employ.
Despite the general consistency in the treatment of international humanitarian law by international courts and tribunals, recent decisions have seen significant disagreement regarding the scope of indirect responsibility for individuals and States for the provision of aid or assistance to non-State actors that perpetrate war crimes. The divisions at the international criminal tribunals with regard to the “specific direction” element of aiding and abetting are reminiscent of the divergence between the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia on the question of State responsibility for supporting or assisting non-State actors that engage in violations of international law. This article analyzes this jurisprudence on individual and State responsibility for the provision of support to non-State actors that breach international humanitarian law, and considers the interaction and interrelationship between these related but distinct forms of responsibility.
Recent cases before the ICC raise the question of on behalf of which entities crimes against humanity can be committed. Interpreting the ‘organizational policy’ requirement in its context, this article argues that in principle crimes against humanity can be committed pursuant to or in furtherance of a policy of any organization that has the capacity to orchestrate a widespread or systematic attack against a civilian population. It is shown that this does not broaden the scope of the crime indefinitely but that concrete requirements defining such entities are found in the contextual elements of crimes against humanity.
Because transnational environmental crime (TEC) can result in the demise of an environmental resource or irreversible damage to the environment and has implications for national and global security, its prevention is a critical issue. Deterrence through law enforcement can go only a limited distance towards preventing TEC. However, there is a huge potential for third parties to be active participants, alongside governmental authorities, in crafting and implementing strategies for TEC prevention. This article explores the ways in which states can catalyze third parties – non-state, non-offending actors – to contribute their own capacities towards the pursuit of preventive outcomes. It draws together concepts and theories from policing studies, criminology and regulatory studies to highlight changing relationships between the state and non-state actors with respect to crime control, and applies them to TEC. Examples and illustrations used in the article relate mainly to efforts to combat the illegal wildlife trade. The article concludes that a more systematic approach to TEC prevention involving third parties is needed, and that this requires dedicated strategic analysis and planning on the part of states, working individually and together.
The paper analyses the dynamic procedures that work during the formation of international law in international organizations and conventional frameworks. These procedures organize and structure the interactive exercise of the normative function by law-creating bodies and law-applying bodies. The paper conceives of this ‘way’ of making international law as a law-making method that the concept of standardization helps to understand. Grounded in Aristotelian dialectic logic, standardization indeed conceptualizes the dialogic and procedural law-making that works for normative coherence in contexts characterized by co-operation and the heterogeneity of interests. Introducing this concept, the paper insists on the fact that it is the procedural nature of the dialogue that is crucial to reach normative coherence. Drawing on the consequences of standardization, and regarding dynamic procedures, it reappraises the status and the importance of both the different sources of international law and the different participants to international law-making. Also, the paper points out the predominance of normative coherence, as well as that of its ‘guarantor’, namely procedure that its author considers the cornerstone of legal certainty in the co-operative context of the international society.
Theories of International Relations take various positions regarding the role of international law in international politics. This article identifies four different perspectives on that role by making two distinctions: first, between approaches that assume that states act on the basis of a cost-benefit analysis and approaches that assume that states act upon shared ideas; second, between theories that assume that sovereign states are the only relevant players in international politics and theories that allow for the possibility that domestic and transnational players may affect international politics as well. Subsequently, the article investigates the choices made by France, Italy, the Netherlands, the United Kingdom and the United States prior to the 2003 war against Iraq. The four perspectives on the role of international law provide different interpretations of the weight these states attached to international law when considering the use of violence against Iraq.