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International law requires that, before any new weapon is developed, purchased or modified, the legality of its use must be determined. This book offers the first comprehensive and systemic analysis of the law mandating such assessments – Article 36 of the 1977 Additional Protocol I to the Geneva Conventions. Underpinned by empirical research, the book explores the challenges the weapons review authorities are facing when examining emerging military technology, such as autonomous weapons systems and (autonomous) cyber capabilities. It argues that Article 36 is sufficiently broad to cover a wide range of military systems and offers States the necessary flexibility to adopt a process that best suits their organisational demands. While sending a clear signal that law should not simply follow technological developments, but rather steer them, the provision has its limits, however, which are shaped and defined by the interpretative decisions made by States.
Chapter 2 explains the procedural character of Article 36 and examines its origins. It first tests the possibility that Article 36 represents a restatement or revised version of a similar provision found elsewhere in the law of armed conflict. To that end, it explores 13 international instruments that regulate the use of weapons in war and that were adopted prior to the 1974-1977 Diplomatic Conference where Article 36 was negotiated. The analysis reveals that none of the pre-existing international compliance mechanisms resemble the AP I weapons review provision. The chapter then examines the drafting materials. Whilst no unequivocal evidence on the motives for adopting a provision on weapons review can be found in the Official Records of the 1974-1977 Diplomatic Conference, there is sufficient evidence to conclude that the key States behind Article 36 were Germany and the United Kingdom. The General Legal Provisions relating to the Conduct of Hostilities and War on Land, operative in Germany since 1961 and mandating that weapons be developed in accordance with the requirements of existing legal regulations, might well be a predecessor to Article 36. [182 words]
Chapter 7 examines the obligation of States under Article 82 of Additional Protocol I to provide for legal advisers to military commanders. It tests the argument that providing such advisers is sufficient to ensure that new weapons will be reviewed as a matter of law. It concludes that, while in certain scenarios an Article 82 adviser can perform an ad hoc weapons review, a State generally cannot avail itself of an argument that providing for legal advisers under Article 82 is also sufficient to meet the requirements of Article 36. This is so because compliance with the latter requires adopting a certain internal approach or coherent national measures whenever a State develops or purchases a new weapon. Above all, the acquisition agencies involved in the procurement process should be aware of the Article 36 legal review requirement. Therefore, and unless a State can produce evidence of a functioning review process, it cannot be presumed that compliance with Article 82 equally implies due respect for the State’s obligations under Article 36. [170 words]
Chapter 5 explores the nature of international economic obligations. It suggests that remedies in international economic regimes have a restorative rather than punitive purpose. It is argued that attribution of breach may not be relevant, or that relevant, in the international economic law context. This study posits that what international courts and tribunals ask is not who is responsible for a breach but rather who is best placed to bear responsibility. In international economic law, shared responsibility typically raises the question of the proper respondent(s).
In international law, the traditional postulate of the jurisdictional function is that it covers only the adjudicative phase; the post-adjudicative phase belonging to the realm of politics. This chapter rejects this premise and attempts to deconstruct it in the light of the purpose of jurisdictional remedy. It follows that recourse to jurisdictional mechanisms is intended to bring disputes to a definitive end. This chapter then draws the consequences for the jurisdictional function.
Transparency is central in current policy debates about international law. One sees it being waved as a flag or wielded as a sword in debates on the legitimacy of international institutions and their role in global governance. Its proponents talk about ‘sunlight being the best disinfectant’, while its opponents see it as changing modern diplomacy. Due to their crucial role in gatekeeping international commitments, these debates have also touched on the issue of transparency in international adjudicating bodies. This has led to fruitful legal and normative analysis of the state of the art of transparency in international courts. This chapter attempts to contribute to these debates by assessing three understudied aspects of transparency in the international adjudication debate. Firstly, adding to the previous literature, this chapter attempts to make a different, though cumulative, case for why transparency in international adjudication matters. It does so by showing how most theories of compliance with international law as well as theories of compliance with international legal rulings are very much information-dependent. If one takes the step of accepting that more transparency leads to more information, then whether or not a dispute is open to the general public becomes relevant for reasons beyond its normative value. It also becomes a question of compliance. Secondly, in line with previous literature on the topic, this chapter provides a theoretically informed survey of the design of procedural rules associated with transparency at the main global adjudicating bodies. Specifically, it does so by assessing design features, which are expected to impact transparency outcomes: whether the rule is mandatory or a default-rule, status quo option; agenda-setters and the scope for possible shifts from the status quo; and the number of veto-players. Finally, the chapter goes beyond the rules of international adjudicating bodies and assesses transparency outcomes in 1,248 disputes at eight major adjudicating bodies across several issue areas. Using online disclosures by international adjudicating bodies as an empirical case study, this chapter provides a novel and comprehensive map of de facto transparency in international disputes. By doing so, it shows that rule-based assessments of how transparent an international adjudicating body is may be misleading.
This chapter examines the ECtHR’s supranational authority in detail analyzing the Court’s classical function of providing judicial review, its remedial practice as well as the new advisory jurisdiction as introduced by Protocol 16. Acknowledging that the ECHR system cannot be connected to a larger autonomous political unit, the claim is put forward is that the ECtHR nonetheless provides for a complementary layer of public authority which directly operates on individuals alongside that of domestic legal systems. The ECtHR enjoys a broad measure of autonomy over states and may circumvent the state veil by placing individuals under international protection or responsibilizing domestic authorities. The direct interaction with domestic actors not only represents part of the Court’s supranational authority but informs, at the same time, its legitimacy as the Convention community feeds on domestic actors, individuals especially, directly submitting their arguments to the Court.
As belligerent parties, non-State armed groups (NSAGs) contribute to environmental damage in non-international armed conflicts. Drawing from the actual practice and doctrine of NSAGs, this article unpacks the legal and policy framework for engaging them on the protection of the environment. It analyzes the international humanitarian law rules protecting the environment binding on NSAGs. To improve environmental protection, a model of environmental responsibilities under international human rights law and international environmental law based on the NSAG's level of territorial control is suggested, as a matter of policy. This article then explores how to engage NSAGs on the legal and policy framework identified and proposes a model unilateral declaration for the protection of the natural environment.
This article concerns the unfolding COVID-19 pandemic in the Democratic Republic of the Congo. It analyses the sanitary measures that the government has taken to respond to the pandemic since March 2020, the way these measures are enforced, and the extent to which women comply with the measures. The article draws from desk research and empirical data from the eastern city of Bukavu, where the research team conducted 134 structured interviews. The findings show widespread willingness to comply with some of the main measures because of fear of sanctions, fear of the pandemic and because of trust in the state or church. The article argues that many women hold the state accountable for the success in containing the virus, but also criticize the state for not providing livelihood assistance during the state of emergency. Further research is needed to assess the impact of COVID-19 on state legitimacy.
There is a pressing need to strengthen systemic integration and mutually supportive interpretation of norms and institutional coordination between the UNECE environmental agreements with a view to understanding their collective contribution to clarifying and further developing international water, environmental and general international law. This chapter identifies the contribution of the UNECE regime to established ‘central or cornerstone rules and principles’ of international water law, including the due diligence rule to avoid or mitigate transboundary harm, the duty to cooperate, the principle of equitable and reasonable use and transboundary environmental impact assessments (EIAs). Key findings demonstrate that these rules and principles are defined in greater detail in the UNECE treaties compared to global treaties, which fills gaps in international law. For example, the UNECE clarifies international law regarding transboundary EIAs by providing criteria to identify what level of risk triggers the obligation to conduct an EIA and compulsory minimum content of EIAs. The UNECE regime also clarifies the effect of applying general principles, like the precautionary and polluter pays principles to the ‘no harm’ rule which strengthens these obligations. The strengths and weaknesses of UNECE’s contribution to developing reporting mechanisms for the Sustainable Development Goals, especially SDG 6 on water, are discussed.
A rapidly deteriorating supply of healthy freshwater resources, exacerbated by climate change, intensifies social and economic injustices and inequalities across the world. Strong public laws and institutions upholding equitable procedures for public participation, access to justice and information regarding the fair distribution of access to sufficient water resources are needed more than ever to protect the most vulnerable. International water law and river basin treaties have poor provisions for public participation. This chapter demonstrates how the UNECE environmental regime, especially through the Aarhus Convention and Protocol on Water and Health, provides a comprehensive framework for the principle of public participation, access to justice and information, including identifying where it fills gaps in international water law and basin treaties. For example, non-state actors including the public and non-governmental organisations (NGOs) have limited almost non-existent rights under the 1997 UN Watercourses Convention beyond the procedure on non-discriminatory access to justice. In contrast, the public including NGOs are given a significant participatory role in law making, implementation and enforcement in the UNECE water regime. This contributes to procedural justice and the principle of intra-generational equity in international water law. The Water Convention, however, should be amended to provide for all three pillars of public participation.
Conspiracy beliefs are associated with detrimental health attitudes during the coronavirus disease 2019 (Covid-19) pandemic. Most prior research on these issues was cross-sectional, however, and restricted to attitudes or behavioral intentions. The current research was designed to examine to what extent conspiracy beliefs predict health behavior and well-being over a longer period of time.
In this preregistered multi-wave study on a large Dutch research panel (weighted to provide nationally representative population estimates), we examined if conspiracy beliefs early in the pandemic (April 2020) would predict a range of concrete health and well-being outcomes eight months later (December 2020; N = 5745).
The results revealed that Covid-19 conspiracy beliefs prospectively predicted a decreased likelihood of getting tested for corona; if tested, an increased likelihood of the test coming out positive; and, an increased likelihood of having violated corona regulations, deteriorated economic outcomes (job loss; reduced income), experiences of social rejection, and decreased overall well-being. Most of these effects generalized to a broader susceptibility to conspiracy theories (i.e. conspiracy mentality).
These findings suggest that conspiracy beliefs are associated with a myriad of negative life outcomes in the long run. Conspiracy beliefs predict how well people have coped with the pandemic over a period of eight months, as reflected in their health behavior, and their economic and social well-being.
Traumatic brain injury is overrepresented in incarcerated samples and has been linked to a number of poor correctional outcomes. Despite this, no research has explored the impact of a recent TBI on compliance outcomes for individuals serving community-based.
We screened for a history of TBI in 106 adults on community sentences and collected compliance (arrests, sentence violations) and related variables (e.g., risk scores, substance use) over 6 months. Sixty-four participants also completed the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS), the Comprehensive Trail Making Test and Color-Word Inference Test.
A TBI in the last year predicted a significantly higher likelihood of arrest, even when controlling for risk of reconviction and current substance use, but was not associated with non-compliance with sentence conditions nor with performance on the neuropsychological tests. In addition, no significant associations were found between performance on neuropsychological tests and measures of non-compliance.
TBI in the last year was an independent predictor of arrest. This result suggests that those with a recent TBI on a community sentence may need additional monitoring or support to reduce the risk of reoffending.
Inside the information industry, management leverages the tools of coercive bureaucracies to routinize work that serves data-extractive ends. Corporate bureaucracies work subtly to set privacy discourses among company employees, inculcating corporate-friendly understandings of privacy as frontline workers approach their work. Organizations hobble privacy offices and amplify voices that interpret privacy law in ways that serve corporate interests. Management also constrains designers in the design process, feeding software engineers’ ambivalence toward privacy and using organizational structures to make it difficult for anyone to build better privacy protections into the designs of new technologies.
Privacy’s performances begin with discourse. This is an important step. By influencing how we think about privacy, by inculcating definitions of privacy that are so narrow, outdated, and corporate-friendly, tech companies can ensure that even those employees who consider themselves privacy advocates will nevertheless end up serving data-extractive business models in the end.
The information industry’s discursive performances have influenced everyone, including policy makers, privacy professionals, and ordinary users of technology. The campaign has seen its greatest success in the United States, where tech companies and their allies are actively undermining the push for a comprehensive national information privacy law, where studies show many people have given up on the hope that they can adequately protect their privacy online, and where many privacy professionals see corporate-friendly privacy discourses as ordinary, routine, and common sense.1
This book has been about the tools the information industry uses to routinize an antiprivacy ethos and practice through its organizations. Of course, not all tech companies use all of these tactics: some use a few, some use more, some use none. But these strategies are in use, and they have the effect of marginalizing privacy throughout the everyday work of law and design. More than just a collection of strategies, they are features of informational capitalism. They help explain how data-extractive capitalism persists.
Through a long campaign to inculcate corporate-friendly discourses about privacy, the information industry tilted our legal consciousness away from privacy and enlisted even those employees who see themselves as privacy advocates in their data-extractive missions. This softened the discursive ground on which we think and talk about privacy and weakened the privacy laws we manage to pass. Technology companies then took advantage of public-private partnerships explicitly built into those privacy laws to undermine their effectiveness. They used coercive bureaucracies and took advantage of power asymmetries to develop compliance programs that reoriented and recast privacy laws in ways that served their surveillant interests. As a result, the information industry undermined the institutions that are supposed to protect our privacy.