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The introduction outlines the conventional narrative that this book seeks to question: The idea that the allocation of the legal right to wage war only to sovereign states, penned by a humanitarianly minded Gentili and implemented in practice through the seventeenth century, became one of the core stabilizing factors of the new states-system in the aftermath of the cataclysmic Wars of Religion. It then lays out the book’s core argument along with its stakes for contemporary debates about the regulation of warfare in the international order.
The previous chapter outlined the personal, institutional, and political dynamics that played a part in Alberico Gentili’s nineteenth-century revival, in particular the emergence of the academic discipline of international law and the crafting of a historical narrative about its past. What we have yet to uncover is the specific story that emerged about Gentili’s greatness in his nineteenth-century context. In Chapter 3, we saw that in the aftermath of his death, Gentili had been remembered primarily for his absolutist writings. Two and a half centuries later, what story did his revivers tell to justify celebrating him as a founder of international law? This chapter argues that nineteenth-century international lawyers painted Gentili as the man who had invented the modern definition of war. In doing so, they gave us a popular narrative about the history of the laws of war that has prevented us from appreciating the profound changes that occurred in the regulation of war in course of the nineteenth century.
This article tries to imagine how the development of international humanitarian law (IHL) could continue despite current difficulties, increasing the ownership and contribution of States and armed groups in this process. After suggesting that some traditional assumptions about IHL may need to be abandoned, it tries to suggest a new way in which IHL rules could be developed, through States adopting together core obligations and principles and each State and armed group then specifying the details internally, but publicly. Finally, it stresses the importance and difficulties of involving non-State armed groups in this process.
Who has the right to wage war? The answer to this question constitutes one of the most fundamental organizing principles of any international order. Under contemporary international humanitarian law, this right is essentially restricted to sovereign states. It has been conventionally assumed that this arrangement derives from the ideas of the late-sixteenth century jurist Alberico Gentili. Claire Vergerio argues that this story is a myth, invented in the late 1800s by a group of prominent international lawyers who crafted what would become the contemporary laws of war. These lawyers reinterpreted Gentili's writings on war after centuries of marginal interest, and this revival was deeply intertwined with a project of making the modern sovereign state the sole subject of international law. By uncovering the genesis and diffusion of this narrative, Vergerio calls for a profound reassessment of when and with what consequences war became the exclusive prerogative of sovereign states.
This chapter sets out to capture the practical phenomenon of sharing international obligations by developing a concept of shared obligations. In the stipulation of this concept, the chapter draws from and engages with various scenarios in practice that involve obligations incumbent on multiple states or international organizations, including those obligations that have been designated as ‘shared’, ‘joint’ or ‘collective’ in legal literature. By expanding on three elements that characterize a shared obligation, it is argued that the main characteristic that distinguishes obligations that are shared from obligations that are not shared is the existence of a connection between the bearers of an obligation in the performance of that obligation. It is this particular relationship between the bearers of a shared obligation that gives rise to questions regarding performance and international responsibility: who is bound to do what and, subsequently, who can be held responsible for what in case of a breach? All in all, qualifying a particular obligation as ‘shared’ brings such questions to the forefront, and thereby constitutes the first step towards addressing them.
Chapter 9 provides the most comprehensive appraisal yet not just of the unparalleled range of pressing problems but also of the underlying structural and systemic challenges that the principal peacemakers confronted in the aftermath of the Great War. In particular, it throws into relief that by the end of 1918 not only eastern Europe had to be fundamentally reorganised after the collapse of the eastern empires and, crucially, the cardinal German question had to be settled in a new way but also, and above all, the need had arisen to create, for the first time, a functioning Atlantic order that included both the old and new European states and the newly pivotal American power. At the same time, it argues that the war had radically changed the international, national and transnational conditions in which a peace settlement had to be negotiated and cardinal decisions about the shape of the postwar order had to be made. And it shows that the unprecedented catastrophe had given rise to unprecedentedly far-reaching – and conflicting – expectations on all sides of a “peace to end all wars” that was to be forged and compensate the different societies and populations for the unprecedented sacrifices they had made.
Chapter 6 seeks to capture the tectonic changes the unprecedented cataclysm of the Great War engendered. It analyses both the catalytic and the transformative impact the war had on Europe, the United States and the wider world in every relevant sphere – international, domestic and transnational politics, economic order, finance as well as the realms of culture and worldviews. It then concentrates on mapping out how, at the core, the war fundamentally recast the transatlantic constellation, precipitating both the destruction of the pre-war European states-system and casting the United States in the role of the power that not only ultimately decided the outcome of the conflict but also seemed poised to dominate efforts to reorder Europe and the world in its aftermath.
This chapter begins by introducing a number of foundational concepts, which serve as the starting point in the field of public international law. Section 1 of this chapter begins with the notion that states are sovereign equals, which must consent to be bound by nternational law. This section also introduces the critical distinction that international law makes between states and “non-state actors.” Section 2 of this chapter discusses the inevitable comparison of public international law with domestic legal systems, and the significant limitations of this analogy as a means for understanding the field of public international law. Section 3 concludes by explaining this book’s overarching structure, as well as the approach of this book to the introduction of public international law.
The interaction of developing states with investment treaty law and arbitration constitutes an important part of the ongoing debate about the legitimacy of the investment treaty regime. However, the authors contend that the concern is often sidelined and that developing states and their concerns are frequently lumped together under the broader rubric of investment treaty law as a threat to national sovereignty and a constraint on regulatory autonomy. By focusing on the formal equality between contracting state parties and the reciprocal nature of international investment agreements (IIAs), the chapter contends that such narratives tend to mask the presence of power disparities, which considerably shape the involvement of developing states in the creation, diffusion and internalization of investment treaty law. The authors seek to counter these narratives by drawing on new empirical data to expose a range of structural, normative and institutional power inequalities. By using the optics of power and focusing on how developing states learn from and internalize investment treaty law, the chapter peers behind the formal structures of investment treaties and ISDS to identify the underlying processes and actors and to question the legitimacy of the prevailing norms and institutional arrangements.
Over a month after 2020 election night had ended, the results of the presidential contest between former Vice President Joe Biden and Donald J. Trump seemed obvious to all except President Trump and his supporters in the Republican Party. Even as Biden’s victory over Trump became clear in the days following the election, a campaign unfolded to overturn the vote totals and deny Biden his victory. The most worrisome elements have involved armed supporters of President Trump threatening election officials with violence or death. No less extreme has been unprecedented litigation supported by seventeen Republican state attorneys general and more than half of House Republicans asking the US Supreme Court to reverse the election. The case is sure to lose. But in the process, broad swaths of the Republican Party leadership have indicated they are willing to use every institutional lever at their disposal to overturn public opinion as expressed in the voting booth.
By 1953, the communist-led Resistance had been marginalized in much of the Mekong delta. But the cost was high. "Traditional" institutions of the village had, in large swaths of the delta, been destroyed. The Franco-Vietnamese "coalition" had defeated the communist-led Resistance. But who would win the peace? The militia leaders, so skilled in war, were not fluent in the arts of peace. This chapter looks at the endgame of empire, when France was withdrawing from rural areas all over the South, downsizing its military presence, and shifting its support to the State of Vietnam. The end result by 1954, however, was a balkanized southern Vietnam with fragmented sovereignty where militias entrenched themselves in rural fiefdoms. The chapter shows how Ngo Dinh Diem, faced with this divided South, won the battle for post-war control of the South. It pays particular attention to his expulsion to Cambodia of the Cao Dai leader Pham Cong Tac, the co-optation of the Hoa Hao militia leader Tran Van Soai, and the arrest, trial, and execution of the Hao Hao militia leader Ba Cut. The chapter also examines the regional, national, and international legacies of the war.
This chapter considers how certain values may come to shape the law. It explores the institutions, processes and actors that facilitate the emergence of altruistically oriented legal norms. In doing so, the link between ideology and law will become more apparent. The evolution in international law presented in this book is the product of an underlying cosmopolitan altruistic ideology which coexists with a statist individualistic ideology that shape the content of legal rules. A legal system can be influenced by one or more philosophical ideologies, and the international legal system has been and continues to be shaped by different variations of these two major ideologies. As such, cosmopolitan altruism and statist individualism have a dialectic existence in the formation of law and its interpretation. Despite the fundamental differences in the nature and effect of these ideologies, they are capable of having simultaneous normative influence on the behaviour of states and the formation of international law.
This chapter examines how internal self-determination applies to populations of states. It argues that populations have a right to internal self-determination amounting to democratic governance. But this is not all. What democratic governance means is a contestable topic, and the very concept of democracy encapsulates many things. Also, states can promote internal self-determination as a continuing right which legitimizes pro-democratic intervention, if necessary. In short, to understand internal self-determination as a right of a population is an important task, but such an understanding carries implications which need to be noted.
We examine Thomas Piketty's explanations for steady and rising inequality in the nineteenth and early twentieth centuries, the decline of inequality in the half-century after World War I, and the return of high levels of inequality since the 1970s. We specify empirical and conceptual problems with his analysis, which stem from his presentation of causality at a highly general and vague level. That leads him to confuse rather than clarify the causal relations among implacable economic forces, changes in technological innovation and population growth, ideology, and governmental policies and the outcomes that he seeks to explain. We identify social scientists and historians who are able to account for temporal and geographic variations in the political coalitions that propelled egalitarian reforms, and that in their absence cleared the terrain for reactionary anti-egalitarian policies that the rich incited for their narrow benefit. We explain why Piketty's limited conception of ideology is insufficient for explaining how mass opposition to inequality is mobilized. We show that if we want to combine the study of capital in the twenty-first century with that of politics, we need a broader conception of ideology than what Piketty offers, one that will allow us to specify how ideology affects parties, states, voters, and activists.
States and international organizations are central to global governance, and are significant formative agents of justice (and injustice), in advancing, sifting, or undermining principles. Despite their formal authority, states and international organizations cannot be relied upon to promote global justice. States in practice often veil their material self-interest in the language of justice. International organizations too can promote their own interest, as well as adhering rigidly to dominant discourses such as neoliberalism that restrict the kind of justice they can advance. Thus states and international organizations should primarily act as effectors of global justice whose task is to ensure the outcomes determined in more extensive deliberation are implemented. Some of their problematic formative agency aspects can be ameliorated by deliberative democratic means. The Open Working Group that finalized the content of the Sustainable Development Goals is indicative of the possibilities here, as it embodied novel deliberative features that curbed polarization, overcame impasse, and facilitated common-interest justifications. Engagements with civil society of the kind now glimpsed in global climate governance can open international organizations to deliberating competing conceptions of justice. This chapter concludes by showing how states and international organizations might expand their deliberative engagements.
The success of any arms control treaty generally depends on its ability to achieve its primary objectives and intended outcomes. At the heart of measuring such success are effective compliance criteria and verification mechanisms. This includes the ability to apply metrics to assess tangible outcomes and measurable outputs and benchmarks of achievement, including on-site visits. In relation to nuclear issues, this also means that verification of both the non-diversion of nuclear material from declared peaceful activities (i.e., correctness of conduct), and the absence of undeclared or clandestine nuclear activities in a particular state (i.e., completeness in following treaty terms).
This chapter introduces a basic theoretical conception of law as an obliging force, which binds us together in governing communities, thereby enabling property of various types to exist. The chapter also sketches a stylized historical narrative, drawn from Max Weber's developmental sociology of law, about how intellectual property emerged, as a new type of legal property. The stylized narrative envisions three basic "layers" to the modern institution of intellectual property, which roughly correspond to three different paradigms for the obliging force of law: empirical formality, semantic formality, and substantive rationality. The historical development and weaving together of these three "layers" in the obliging force of law thus becomes an overarching narrative (or meta-narrative) for the book.
Much of the work of political science revolves around institutions—the structures through which politics happens. Leaders enter the frame, of course, but often as institutions in human form: presidents, premiers, populists, and mobilizers who serve to channel and direct who does what and what they do, much like an agency or law. We might trace this pseudo-structural, largely mechanical reading of human agency to political scientists of an earlier era: the behavioralists of the 1950s and 1960s. James C. Scott began his career as just such a scholar. For his dissertation-turned-book, Political Ideology in Malaysia: Reality and the Beliefs of an Elite, Scott surveyed a gaggle of Malaysian bureaucrats to examine, effectively, the extent to which their values and assumptions supported or subverted the new democracy they served. Although itself fairly prosaic, that work foreshadows the political grime and games that soon pulled Scott in more promising directions theoretically, whether scrutinizing Southeast Asia or global patterns: disentangling structure from norms, finding agency around the margins of class and state, and rethinking how power looks and functions.
This essay advances the argument for James C. Scott as a preeminent political ecologist, despite the fact that he has not claimed such a title for himself. While he is variously described as an (errant) political scientist, an (adopted) anthropologist, and a (most of the time) Southeast Asianist, he has not usually been called a card-carrying political ecologist. But in fact, his many works have foreshadowed a number of the topical concerns of political ecologists of Asia, such as his attention to subsistence strategies of peasants, to hegemony and resistance, to state power and simplifications, to anarchism and self-organization, and to ecological transitions and human-nonhuman interactions. The fact that Scott is one of the most-cited theorists in the field of political ecology is further proof of his influence, with authors using Scottian themes to launch critical investigations of how power shapes environmental relations and how politics plays a role in the co-constitution of nature and society.