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With the rise of global governance, the concept of authority has become central to capture the power of non-state actors to shape the everyday making of world politics. Such power draws on intersubjective schemes that make non-state actors be perceived as being in authority or an authority. The chapter argues that the association of practice and authority moves the boundaries of the field. Unlike the Weberian conception of authority that pre-defines various sources from which actors can draw, scholars working from a practice perspective have tackled the process of authority. They thus have substituted a substantialist ontology with a relational one. The chapter details three main contributions of this scholarship. First, scholars working from a Bourdieusian perspective have investigated the claims to authority, which sheds light on the social struggles underpinning the construction of hierarchy in international relations. Drawing on the sociology of knowledge, a second trend of scholars has looked at the construction of the object of authority, which allows to understand the historical construction of expertise. Finally, a third trend of research, inspired by governmentalities studies, has opened up the new empirical field of authoritative practices, which changed the analytical focus from institutions to the making of governance.
The book opens with the provocation that empirical legitimacy not only remains poorly evinced, it is in its current formulations irredeemably so. As long as legitimacy studies remain locked in the politics of crisis, of repairing deficits to a Western ‘preconcept’, the everyday crafting of authority will remain overlooked. The chapter looks to the expanding non-state, specifically non-governmental organizations (NGOs), to paint a picture of productivity, cautious expansion and cumulative change rather than that of deficit, crisis or threat. It asks how NGOs craft their everyday authority to act in coastal Tanzania, far from the air-conditioned rooms that normally denote the international sphere. In doing so, it abandons the residual state-centrism and positivism that still characterize legitimacy studies. World politics must gravitate away from an insular, at times recursive, focus on Western normative templates towards understanding global phenomena as locally articulated. The introductory chapter also provides a synopsis of the Tanzanian case, of the legitimation practices themselves and an overview of the book.
Legitimacy studies, even those more sociologically attuned, remain committed to ascertaining the presence or absence of legitimacy. What appears to embrace fluidity, iteration and hybridity ultimately proves static in its binary yes/no conception. This book’s intent was to embrace the multiplicity, multivalency and making of legitimation in postcolonial contexts. Each non-governmental organization (NGO) intervention is legitimated iteratively; a static belief in the legitimacy of an NGO, or of NGOs in general, has no meaning. Furthermore, legitimation practices are mutually constitutive even when placed in opposition to each other. At that moment in Tanzania, in the wake of peak liberalization, this book mapped two nexuses of legitimation practice: territoriality/representation/materiality and state/extensity/voluntarism, playing out to different effect in different circumstances. Each nexus is transitory, subject to cumulative change and reconfiguration over time. Given this, the informal legitimation practices so-honed by NGOs in tight spaces will prove critical to non/state survival and its cautious expansion in Tanzania and beyond. This chapter thus lastly comments on prospects for broader non/state legitimation within authoritarian capitalist futures.
This chapter lays down the theoretical groundwork for reconceptualizing legitimation as practice over legitimacy as a stable state, integrating three theoretical developments. The first of these, specifically on the topic of legitimacy, is a movement away from normative towards empirical enquiry. The chapter builds on recent, millennial attempts to do so but adds a long overdue interrogation of legitimacy’s leftover Western centrisms. The second development is a movement away from the state as the primary locus regarding legitimation. There has been a concordance across disciplines that public authority is not limited to, nor contained by, the state. New, hybrid forms of authority, straddling public and private, local and global, state and society, encapsulate what the book terms non/state governance, within which state and non-state actors are enmeshed. The third development is the burgeoning field of practice-based enquiry, whereby methodological space has opened up in all relevant disciplines to spotlight the practices through which power is exercised and its conditions (re)produced. There has been a productive concordance around practice as ‘fertile’ ground for a range of disciplines in the West but also for eminent scholars in Africa who foreground the multiplicity of the normally minimised African subject, who negotiates structures of coloniality within everyday life.
Legitimacy has long been perceived through a Westernized lens as a fixed, binary state. In this book, Kathy Dodworth offers an exploration of everyday legitimation practices in coastal Tanzania, which challenges this understanding within postcolonial contexts. She reveals how non-government organizations craft their authority to act, working with, against and through the state, and what these practices tell us about contemporary legitimation. Synthesizing detailed, ethnographic fieldwork with theoretical innovations from across the social sciences, legitimacy is reworked not as a fixed state, but as a collection of constantly renegotiated practices. Critically adopting insights from political theory, sociology and anthropology, this book develops a detailed picture of contemporary governance in Tanzania and beyond in the wake of waning Western dominance.
In the recent conflicts there have been a number of controversial issues involving the laws of war including the issue of targeted killing, civilian casualties and the blockade of Gaza. In addition to the public relations aspect, international criminal law is increasingly relevant. In accordance with the principal of universal jurisdiction, any country can prosecute a suspected war criminal even if there is no nexus between the offence and the State concerned. This principle has been used in attempts to bring charges against Israeli politicians and military commanders in a number of European States. To date no prosecutions have taken place and the judicial authorities have tended to see these attempts as a political abuse of legal proceedings. The International Criminal Court has jurisdiction to try war criminals, if the State involved is unwilling or unable to investigate or prosecute the case. Palestine has claimed that Israel committed war crimes in the territory of Palestine and thus the Court has jurisdiction. Israel disputes the claim and the jurisdiction of the Court. The issue has not yet been resolved.
Chapter 2 considers legal uncertainty in the jus ad bellum as defined in the UN Charter and other sources of law. It describes paradigms, framing this law around ‘plain cases’ of lawful and unlawful force. Supervaluationism describes paradigms as determined not by one but several tests, overlapping but not co-extensive - cases may meet all or only some tests. Fuzzy logic refutes binary distinctions between lawful and unlawful force, arguing these are end-points of a continuum, separated by a ‘penumbra of uncertainty’. The chapter outlines ‘hard cases’ of force, different to cases the UN Charter most obviously prohibits: anticipatory self-defence, pre-emptive self-defence, self-defence against non-state actors, humanitarian intervention, use of force to prevent WMD proliferation. The chapter describes how interviewees and survey participants evaluated such justifications, the results displaying the vagueness already identified. The chapter identifies one possible explanation: lawyers align with different ‘interpretive cultures’, holding different opinions about valid legal tests and interpretive techniques. ‘Restrictivists’ prefer ‘formalist’ interpretation techniques, while ‘expansionists’ prefer ‘dynamist’ interpretation techniques.
Due to its complexity, climate-induced migration can be explored from different angles and disciplines. Over the past decades, scholars and practitioners engaged with this topic have extensively discussed the terminology in use, the (still) controversial link between human mobility and climate change, and the legal status of those fleeing environmental disruptions. However, a comprehensive understanding of the justice-related angle of this issue seems underdeveloped. What precisely is the ‘injustice’ where people forced to migrate because of slow-onset, rapid-onset, or extreme-weather-related events are concerned? The following chapter seeks to answer this question by examining climate-induced migration through the lens of environmental justice (EJ). To this end, the chapter proceeds first by analysing the EJ paradigm, its origin, and its main features. Second, it justifies the choice of using this concept by emphasising how its multidisciplinary nature, multidimensional understanding of justice, and multi-scale (spatial and temporal) approach well suit climate-induced migration. Finally, it presents a proposal to remedy the injustice of climate-induced migration with an EJ-oriented pathway. This proposal introduces a community-based EJ approach rooted in the notion of collective capabilities.
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.
Private regulators operating across national borders play and increasingly important role in areas once occupied exclusively by states and state law. These new regulators and their regulatory regimes challenge state-centred conceptions of law, including public law. The Equator Principles (EP) make up a private transnational regime that seeks to regulate infrastructure project finance world-wide. It includes detailed environmental and social impact standards and procedures. After offering a primer on Thailand’s constitutional system, the chapter turns to a case study of the Equator Principles regime that explains how it works, explores its impact in Thailand, and considers its implications – practical, conceptual, and normative – for the uncertain boundaries between private law and public/constitutional law in Thailand.
Inquiring about the role and regulation of non-State actors (NSAs) often leads to captivating discussions, largely because examining the rules applicable to these entities implies certain choices that not everyone is willing to make. Indeed, moving away from State-centric conceptions (and the ‘beliefs’ contained therein) is not exclusively a legal exercise; it also involves a policy decision that lawyers (and the institutions for which they work) are often reluctant to make. In this context, the present book has invited the reader to think differently about a system that places NSAs at the periphery and non-State armed groups (NSAGs) in the margins of this periphery. The analysis has focused on the legal regulation of the detention activities of NSAGs in non-international armed conflicts (NIACs), but it is expected that many of the findings can also be applied to other entities operating in the legal realm. Bearing these considerations in mind, this final chapter has a two-fold goal. On the one hand, it presents some of the key conclusions of the book; on the other hand, it proposes new avenues to put them into practice when dealing with NSAGs in the field of detention.
This chapter explores the evolution of the governance of so-called “fragile states” as a case of change in the architecture of global governance. Reduced funding from states and broader ideational trends about managerialism and effectiveness have rendered international organizations (IOs) less important in defining policy responses and assigning roles to other actors. This change in the governance architecture has engendered more networked and market-based forms of governance, with different stripes of professional networks becoming more important. The chapter argues that this transformation helps explain substantive changes in how fragile states are governed: in the 1990s and into the early 2000s, the treatment of fragile states was dominated by a “peacebuilding” approach focused on building institutions to support the rule of law and democracy, and with IOs such as the UN and the World Bank in authoritative roles. Gradually, over the course of the 2000s and 2010s, this approach became bifurcated, which reflects the prominence of professional networks and the reduced authority of IOs to define an overarching framework: military professionals in states advanced “stabilization” and counterterrorism – focused on fighting insurgents and conducting anti-terrorism operations – while networks consisting of humanitarian and human rights professionals advanced a focus on protection of civilians.
Though relatively young, the climate regime has already exhibited a profound transformation. “Old governance”, embodied by the Kyoto Protocol, was largely state-focused and hierarchical. The 2015 Paris Agreement represents “new governance,” with an emphasis on transnational actors and bottom-up approaches. The bet is that new governance is better suited to both the realities of domestic politics and profound uncertainty surrounding climate change than the old governance model. If we are correct, then we have created the enabling conditions for decarbonization. The question is: will it happen fast enough? The answer to this question is critical both for the future of the planet and the legitimacy of global governance. Climate change will likely exacerbate existing problems in world politics such as armed conflict and mass migration. Worse still, those least capable of adapting to a changing climate will be most affected. A shift to a “new” global governance architecture means little if climate change continues apace. To preserve the legitimacy of the climate regime, as well as much of the fabric of the current liberal international order (such as it is), actors will have to move more swiftly and decisively toward a fossil-free world.
The monograph focuses on the human rights challenges that are associated with the involvement of States in economic activities and on the role that international law has to play in addressing and understanding some of those challenges. State-owned entities are looked at through the lens of several topics of international law that have been found to hold particular relevance in this context, such as the concept of legal personality in international law, the process of normativity in international law, State immunity and State responsibility. The monograph shows how SOEs have had a significant role in shaping the evolution of international law and how, in turn, international law is currently shaping the evolution of State-owned entities. By focusing on State-owned or State-controlled business entities, rather than private corporations, the monograph aims to offer an alternative perspective on the challenges associated with corporations and human rights.
Literature in migration studies has analyzed the deployment of development and humanitarian aid in migration policy, as well as the implication of non-state actors in the operationalization of European migration policy in North Africa. Little attention has been paid to the implementation of such a policy turn on the ground, and to the local configuration of power and governance that it produces. Building on fieldwork and interviews with representatives of donors, NGOs, and international organizations, this chapter investigates European-funded projects providing social assistance to “sub-Saharan” migrants in Morocco. The chapter argues that the use of aid for border control purposes splinters responsibilities over migration governance. In the space left by an “indifferent” Moroccan state, aid agencies become the main implementers of a social and humanitarian policy addressing the presence of Black migrants in the country. The relevance assumed by non-state actors is not only due to the unwavering availability of European funding for border control, but also due to its entanglement with historical patterns of state externalization of care for the poor to non-state actors.
The analysis in the last chapters reveals a convergence across the various models and jurisdictions considered in addressing the ‘substantive content’ of the obligations of non-state actors. This chapter attempts to describe and systematise what emerges from these judgments into an analytical framework which I term the ‘multi-factoral approach’. An optimal articulation of this approach, I argue, requires a series of steps, three of which I seek to accomplish in this chapter: namely, identifying the various factors at play in a situation; examining their normative grounding and understanding their relevance to the imposition of corporate obligations; and, developing presumptive principles, that help us understand their implications for corporate obligations. I identify and explore the relevance and weight to be accorded to three beneficiary-orientated factors (interests, vulnerability and impact) as well as three agent-relative factors (capacity, function and autonomy). This chapter also shows that none of these factors is alone sufficient to determine corporate obligations.
This chapter considers the ‘state duty to protect’ model developed at the international level which imposes obligations on the state to protect individuals against harms to their fundamental rights by non-state actors. The model attempts to preserve the state-centric nature of international law but, I argue, is not consonant with the legal normative foundations of fundamental rights which are agnostic as to the agents who must realise them. In particular, I show that the model requires understanding what the state must protect individuals against which, in turn, requires determining what the legally enforceable obligations of non-state actors are. Through examining cases of the European Court of Human Rights, I analyse how the Court in fact reasons about the substantive content of such obligations. I show how it lacks a clear analytical framework but references several normative factors and utilises a balancing process which provide the seeds for the multi-factoral approach developed later in the book.
This chapter considers how we determine the final obligations of a corporation where its actions or policies infringe upon fundamental rights. Since there are competing factors, there is a need to balance different interests. I argue that the proportionality test can be applied successfully to balance the fundamental interests of individuals against the interests of the corporation and thus can provide a structured process of reasoning for determining the final negative obligations of corporations. In making this case, I consider the justification for and challenges to applying the proportionality test to conflicts between non-state actors and individuals with a specific focus upon the corporation. I then consider how each stage of the proportionality analysis – purpose, suitability, necessity and balancing - can apply to corporations and the complexities involved in doing so. In doing so, I will show where each factor – identified in the last chapter - fits into the overall analysis.
This chapter examines the ‘indirect application model’ in constitutional law whereby fundamental rights do not apply ‘directly’ to the relations between individuals but nevertheless influence the content of the private law legal rules that apply between non-state actors. The legal rules though articulate the obligations of non-state actors and, if fundamental rights affect those rules, they affect the obligations of non-state actors. I argue that the indirect application model has several drawbacks – including weakening rights and undermining their relational dimension - but ultimately collapses into a form of direct application model. I thus examine, through this lens, seminal cases in Germany and South Africa, seeking to understand what approach courts utilize to construct the substantive content of the obligations of non-state actors. The analysis highlights that courts draw on a number of factors together with an amorphous balancing process to determine those obligations – similar to the other models analysed in the book.
This chapter considers the ‘expanding the state model’ which limits the obligations flowing from fundamental rights to the state and only imposes obligations on non-state actors if they are, in some sense, state-like. This model fundamentally raises the question of what constitutes part of the state and, in so doing, provides an understanding of the determinants for having obligations. I argue the model focuses on the wrong issue: which agents are part of the state rather than the factors that are relevant to determining obligations. The chapter also examines the model as it is expressed through the case law of three jurisdictions – the United States, Germany and South Africa. In doing so, I explore the factors the courts employ to determine whether an entity or function is state-like and their implications for obligations. Those factors overlap with those identified in the other models – which, in turn suggests, the artificiality of confining the application of rights only to state actors.