This chapter presents the fragmentation of law applicable to targeting in armed conflict, which spans international humanitarian law, international human rights law, and international criminal law. It discusses the interrelationships among these branches of law. Considering IHL’s most direct relevance to targeting in armed conflict, it reviews its material, geographical, temporal, and personal scope. It addresses the foundations of IHL, including the relationship between the principles of humanity and military necessity, as well as the perception of IHL as a regime that authorizes rather than restricts attacks, and also the principle of equality, theoretically designed to ensure implementation of IHL. In the final part of the chapter, the definitions of the central terms used throughout this monograph are discussed – namely that of attack and permissible degree of force to be used against lawful targets – and the restrictions on means and methods of warfare in the same context.

Chapter 2 shows how transnational cooperation in Europe led to the ICI’s invention of transcolonial and emulative development in the 1890s. The ICI’s transcolonial development differed from the state-led investment programs of the 1930s but resembled the functional governance famous among the UN development agencies in the 1960s. For utilitarian, racist, and ethical reasons, tropical hygienists, free-trade capitalists, Social Christians, and colonial lawyers in the ICI assumed that only the intrinsic motivation of Africans and Asians themselves could make colonial development a success. In the 1890s, the ICI’s showcase project was the Matadí-Léopoldville railway line in the Congo Free State, which successfully combined international investment and emulative development. The ICI facilitated the transcolonial recruitment of 10,000 indigenous workers for the construction by establishing rules for their employment. Although many workers died on the construction site, ICI members propagated a “soft” development that allegedly combined economic with ethical standards. Christian ICI members promoted this “ethical” development policy. Rarely, however, the ICI’s “soft” development could live up to the expectations it raised. Instead, ICI members designed colonial law and manipulated customary law to use both as a legal basis for exploitation under the guise of “soft development.”

To manipulate Islamic law and use it for the purpose of “development,” ICI members declared it a customary law, as Chapter 5 unveils. The most famous amalgam of Islamic law and customary law was the adat law collected by ICI members in the Dutch Indies. Inspired by the adat law collection, ICI members created new legal codes for Muslim Africa, making the law more compliant to European necessities. Legal codes strategically combined elements from the four legal schools of Islam, customary law, and European law. In Africa, codifications of Muslim law served as an instrument to manipulate property law. One purpose was to expropriate habous land, traditionally inalienable land of Islamic endowments, which was often fertile and highly-prized. Hence, the misuse of Islamic law became a central tool for the ICI’s transcolonial governmentality. The codification projects show how ICI experts used their international networks to find the best strategy for reworking Islamic law in favor of colonialism. Colonial administrations, ICI experts recommened, should not fear Pan-Islamic movements, but should instead capitalize on cooperation with Muslims both inside and outside their territory. The expropriation of habous became so widespread that the Paris Peace Conference debated it in 1919.

Since July 1945, more than 2,000 nuclear explosive devices have been detonated in tests in more than 60 different locations. The total yield of nuclear tests conducted from 1945 to 1995 is equivalent to 34,000 Hiroshima-size bombs. Only North Korea has test-detonated nuclear weapons this century. While the 1963 Partial Test-Ban Treaty remains in force the 1996 Comprehensive Nuclear-Test-Ban Treaty has not entered into force. The chapter explains why and what customary rules restrain nuclear testing today.

The first chapter of the book outlines the status of the right to life under international law. It concludes that the right to life is both a customary rule and a general principle of law while the prohibition on arbitrary deprivation of life is a peremptory norm of international law (jus cogens).

This chapter summarises the customary rules pertaining to the right to life. They bind not only States but also international organisations and, with respect to specific rules in certain circumstances, also non-State actors. The chapter further identifies those rules of general international law that have attained the status of peremptory norms (jus cogens) on the basis of their acceptance and recognition as such by the international community of States as a whole. Such norms bind all actors, whether State or non-State in character. Finally, the chapter delineates those rules that are custom in the making – de lege ferenda – but which have not yet crystallised, for want of opinio juris that is both general among States and specific among those States that are specially affected by it.

This chapter provides a snapshot view of the different ways that 195 countries around the world use lay participation in legal decision-making. We collected information from a variety of sources, including new expert surveys, legal research, and existing empirical evidence, to determine which countries use lay citizens as legal decision-makers in criminal cases and how they use them. Approximately two-thirds of the world’s countries use some form of lay participation, and the most commonly used forms are juries and mixed tribunals. The use and form of lay participation vary by geography and by the legal tradition of the country. The majority of countries in Africa, Australia and Oceania, Europe, and North America use some form of lay participation in their legal systems. Countries with common-law or customary-law legal traditions are most likely to rely on lay citizens as legal decision-makers. The widespread use of lay participants around the globe underscores the importance of studying this phenomenon. This chapter provides a baseline against which future studies in lay participation can be measured.

Chapter 4 analyzes the operation of colonial legal structures and looks at implications of parallel customary and English law frameworks put in place in contexts of legal imperialism in British colonies. This chapter also explores structures of government, separation of powers, and the construction of legislative, judicial, and executive branches during colonialism. The colonial executive power was largely unconstrained, which has contributed to structural problems in the organization and operation of postcolonial governmental structures that carried over from colonialism to a significant degree. The implications of these structures for postcolonial rule in Nigeria are also examined.

Chapter 2 examines questions of governance in colonial contexts. It considers how conceptions about governance of corporations bear similarities to approaches to colonial governance by colonial powers. The thin European staffing that is typical during colonialism, emphasis on reducing costs and covering colonial costs with local taxes, and focus on extraction draw attention to ways in which colonial corporate governance reflected decision-making and investment choices more appropriate for short-term corporate decision-making than long term decisions about entire societies that might impact millions of people. The internal construction of colonial governance and the often- problematic bifurcation between English law and customary law in British colonial contexts is also explored.

In this chapter, we are interested in the mechanisms through which some customs are “incorporated” into legal systems. In order to make our demonstration, we start by clearing up some of the conceptual confusion surrounding the use of terms related to the notion of custom, by exploring some of the jurisprudential literature that addresses the distinctions among custom, customary law, and the customary sources of law. Turning to the Islamic world and normativity, we also conduct a very broad review of studies addressing the question of ‘urf. Taking the specific case of Morocco, we then concentrate on the colonial period, colonial interest in customary law, and the rejection of such law in the nationalist discourse and in the first decades following independence. Finally, again in Morocco, we focus on the specific case of al-kadd wa’l-si‘âya, which offers a striking example of the transformation of a local custom into a positive legal provision. In conclusion, we suggest some analytical caution regarding the concept of legal hybridity in order to better ascertain the historically contingent character of positive law.

Have International Investment Agreements (IIAs) generated or changed customary law? (1) Scholarship’s optimistic approach to the status of customary international law fails to distinguish the elements of custom-creation from their proofs. (2) IIAs are not instances of expropriation or non-expropriation, hence they cannot serve as state practice. Verbal acts are not practice of the content of that verbal act. (3) IIAs are not opinio iuris because it is unlikely that treaty parties express preferences regarding customary law by concluding a treaty. (4) If treaties are an opt-out from general international law, then IIAs are likely concluded to counter perceptions of custom and a fortiori not custom-building. Therefore, a customary international law on expropriation is unlikely to be shaped significantly by IIAs and even if they did shape it, the resulting norm would be highly unspecific.

Jean de Blanot, the enigmatic Iacobus Aurelianus, and Jean Blanc de Marseille are the first known French lawyers trained in Italy to have shown interest in one of the most famous custumals in medieval Europe, the Lombard book of fiefs known by the name of Libri Feudorum. Considering that this compilation was increasingly gaining authority in the Italian law schools, this chapter shows how these three lawyers re-elaborated these teachings and compared (or opposed) them to local bodies of norms. By observing how they developed different notions of custom and argued about the validity of the Libri Feudorum outside Lombardy, the chapter unveils the problematic dialectics between Civil law, local custom, and practice, and provides some insights into the making of the ius commune, its practical and historical roots, its geographical dimensions.

Of all the common law jurisdictions, New Zealand’s administrative law has probably stayed closest to that of England. Even so, notable differences have developed. The most distinctive part of the local law relates to the Treaty of Waitangi, and the extent to which it constrains the exercise of public powers. On issues common to both jurisdictions, there is a mix of more interventionist or liberal approaches and more conservative ones. A more interventionist approach is notable as regards the effect given to unincorporated international treaties. A more conservative approach can be observed to the human rights legislation and also still, at least to some extent, to the substantive grounds of judicial review (heightened scrutiny unreasonableness, substantive legitimate expectations and mistake of fact). Turning from substance to procedure, access to judicial review is more liberal in several respects. Finally, a notable feature of the New Zealand approach across all aspects of administrative law is a marked resistance to rigid doctrinal categories. Reflecting on these differences, the conservative aspects can be seen in the context of the still fairly unqualified adherence to Parliamentary sovereignty, in the absence of a supra-national source of law such as the ECHR or the EU. The other aspects may be seen as reflecting the national identity as a small polity with informal channels of communication, given to pragmatic solutions, and keen to be seen as a good international citizen.

The increasing participation of armed groups in peace agreements, coupled with the relatively uncertain status of non-state actors under international law, raises a number of important but as yet unsettled questions. This chapter addresses three key issues. The first is the legal status of armed groups under international law. This has direct consequences with respect to the status of peace agreements, and whether they may be regarded as establishing binding international legal obligations or as mere political declarations of intent. The second is the designation of certain groups as ‘terrorist’, and the implications on their participation in peace processes. The third is the role of customary international law vis-à-vis the regulation of peace agreements. The focus of this component is on the potential role of non-state armed groups in the process of creating customary law. Of particular interest is the emergence of customary law regarding the inclusion of human rights considerations in peace agreements.

The chapter addresses problems with the general rules of state responsibility from the perspective of functionality. The analysis follows the structure of the Articles on State Responsibility, which means that the critique is organized according to the elements of an international wrongful act, the content of responsibility, as well as its implementation. It is argued that the general rules of state responsibility struggle to respond to the heterogeneity of actors, subject-matters, and norms implicated in the governance of international affairs. It is further contended that state responsibility is marginalized in some situations; in situations of serious wrongs international criminal law has appeared as an alternative remedy, and significant harm is dealt with through rules on international liability. Thus, other forms and regimes of responsibility have appeared, making it necessary to understand responsibility in broader and more versatile terms than what is offered by the state responsibility doctrine.

This chapter recalls the origins of the CMRA – a bill applicable to all religious communities in India – in the Hindu Child Marriage Bill and showcases the procedural and epistemic minoritization of Muslims and Islamic principles in the Legislative Assembly and the public sphere that took place during this transformation. This chapter complicates the so-called Muslim demand for exemption from the CMRA by pointing to the heterogeneity of Muslim opinions on the bill, as well as the multiple sources of dissent – ranging from a movement to reform of Muslim custom that resembled the motivations behind Sarda’s bill, on the one hand, and a protest against the procedural minoritization of the community during the passage of the bill, on the other. This chapter shows how “the Muslim” was rendered into a political minority, and attributed a backward sexuality, just as Hindu reformism assumed the mantle of secularism and the CMRA became recast as the collective goal of the nation.

Jessup’s Transnational Law challenges the state as the sole maker of international law. Nevertheless, the doctrine of transnational law advocated for the disrobing of the newly gained sovereignty in Asia and Africa. American corporate lawyers used transnational law to expand their international commercial arbitration practice. Next, in disputes arising from the expropriations by new states of property acquired from concession contracts investors found transnational law profitable. Effectively, Transnational Law, restoring a colonial status quo, facilitated the post-war internationalization of contracts to develop the law of economic protection of aliens. It wantonly focused far too much on “contracts” forgetting conveniently its “concessional” nature. The doctrine of transnational law grew from the McNair-Lauterpacht School of thought that “exploited ungrudgingly and to the full” the “rules” of “private law for the purpose of the development of international law”. The Suez crisis inaugurated the American lawyer's putting of transnational law into practice.

This chapter explores the relationship between law, crime and violence. It begins by setting out a fairly standard historiographical narrative that, as polities coalesced and became more powerful over the course of the Middle Ages, so the law and legal mechanisms which underpinned political structures of power became more efficient. The rediscovery of Justinian’s Digest of Roman law in late eleventh-century Italy and a subsequent emphasis on Roman law in medieval Europe, is presented as pivotal. This paradigm is, however, then complicated in a number of ways. The legal prosecution of violence continued to be dependent upon the cooperation and involvement of communities. The courts’ growing interest in equity and the examination of fact as well as just law, further problematizes the picture. Roman law co-existed alongside customary law and canon law; this kind of pluralism is set beside the diffusion of justice across fragmented political units. Vengeance continued to be a powerful motivator both in episodes of interpersonal violence, and in the logic underpinning the law itself. Far from contributing to a state monopoly of violence, law most often aimed to channel and circumscribe violence rather than entirely to prohibit it. The essay ends by examining the methodological implications of these considerations.