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The involvement of British service personnel in the invasion of Iraq in 2003 took place against a background of division both domestically and internationally. The legal basis, revolving principally around the meaning of Security Council resolutions, was hotly disputed and has led to continuing political ramifications as the British and American military presence in Iraq continues. At the domestic level, the role of legal advice in the process of executive decision-making and its presentation to parliament became particularly apparent. The inability of the Security Council to achieve consensus on how to tackle either crisis calls into question its continued role as the fulcrum of collective security. At the domestic level, the executive appeared to be effective in sending troops without clear UN authority, and although parliament seemed to play an increased role there are still questions as to whether it was an adequate democratic counterweight to the executive. This chapter opens out the legal and political debate to discern both the legality and legitimacy of the military operation to topple Saddam, and the subsequent occupation and attempted rebuilding of Iraq.

This chapter examines a number of problems of interpretation of Security Council resolutions to construe them as not conflicting with jus cogens and so preserve their validity. As for resolutions that cannot be so interpreted, the chapter examines the issue of invalidity of resolutions; and the means of challenging illegal resolutions: protest, refusal to carry out, and judicial review. The practice of all relevant international tribunals is examined. As a follow-up on Chapters 12–14 of this monograph, the articles by this author in Max-Planck YBUNL (2007) and AJIL (2008) should be consulted.

Part 4 focuses on the criminal prosecution of alleged pirates and armed robbers at sea. It discusses what substantive criminal norms the prosecution of acts of piracy and armed robbery at sea could be based. It attempts to distil the applicable jurisdictional basis from the complex mesh of international treaties potentially applicable to the various offenses typically committed in the context of piracy and armed robbery at sea. Thereby, it analyses whether the various counter-piracy Security Council Resolutions had an impact on the criminal prosecution of pirates and armed robbers at sea. In a next step, the different propositions and arguments as to the most suitable venue for the criminal prosecution of pirates and armed robbers at sea are then examined. For the time being, the majority of persons suspected of having committed acts of piracy or armed robbery at sea are prosecuted in regional States. The transfer of alleged offenders from States carrying out maritime enforcement operations in the Gulf of Aden and apprehending persons suspected for piracy or armed robbery at sea to regional States willing to prosecute them is a prerequisite for the commencement of any criminal proceedings. Thus, the legality of transfers of alleged pirates and armed robbers to regional States, especially in the light of the principle of non-refoulement, is a highly topical issue in the present context.

This chapter discusses gender, peace, and the disarmament, demobilisation and reintegration (DDR) programs for former Sudan People’s Liberation Army (SPLA) combatants and Women Associated with the Armed Forces (WAAF) in South Sudan, based on field research in Juba and Wau in South Sudan in 2013. The chapter examines the distinct impact of DDR on women former combatants and on (WAAF), in a militarized ‘post’-conflict setting where gender inequality prevails, and in light of the government of South Sudan’s and the international community’s endorsement of United Nations Security Council Resolution 1325 on Women, Peace and Security. A key finding is that in post-CPA South Sudan, DDR compounded social exclusion for most women ex-combatants and WAAF. The chapter calls for a rethinking of understandings of peace as mere cessation of hostilities, and as gathering of arms from former combatants. It also calls for restoring the voices of former combatants of both sexes, and of citizens in local communities directly affected by conflict, into policy and scholarly discourses on Security Sector Reform (SSR), and post-conflict reconstruction.

This chapter examines the interpretation of UN Security Council resolutions, as well as interpretation of institutional decisions in the WTO law. The general similarity with the interpretation of treaties and the relevance of effective interpretation is emphasised. As a follow-up on this chapter, this author's case review in AJIL (2008) should be consulted.

This chapter outlines the different enforcement mechanisms of Security Council resolutions as well as of ICJ judgments. Overall, enforcement can take two forms: direct enforcement, when the content of the decision not implemented by the addressee is implemented by another actor; or indirect enforcement, when coercive measures are taken against the non-complying actor in order to compel compliance. The chapter first outlines how binding Security Council measures are enforced, before analysing the enforcement of ICJ judgments. It then examines the enforcement of Security Council resolutions and of ICJ judgments, arguing that such enforcement is mostly political, influenced by State sensitivities and thus, unreliable. The chapter finally concludes with some proposed alternatives to improving the consistency of the enforcement of Security Council and ICJ measures.

This chapter studies the prospect of advancing State responsibility through existing UN channels generally, with particular insistence on the potential contributions of UN organs. It canvasses major scholarly currents coalescing around, or against, this idea before addressing issues related to fairness. This chapter then frames the role of UN organs in the global security context by reference to transnational terrorism as the primary case study. It assesses the institutionalization of State responsibility by looking specifically at structural aspects and limitations of UN organs. The chapter concludes by exploring the prospects and limits of the Council’s powers on this front, framing the major analytical stakes involved in this debate with specific reference to the Council’s ‘quasi-judicial’ exercise of powers. Ultimately, it emphasizes that the Council is best suited in some circumstances to implement State responsibility in global security settings, and addresses the potential judicial review of its resolutions, the functional overlap between it and the International Court of Justice, and potential lis pendens between those two organs.

The Women, Peace and Security (WPS) agenda emanates from the ground-breaking Security Council Resolution 1325 (2000) which centres upon bringing women’s experiences of armed conflict into decision and policymaking in the exercise of the Council’s primary responsibility for the maintenance of international peace and security. The chapter asks whether, despite its location within the Security Council, WPS can be understood as an international human rights agenda as envisaged by women activists who lobbied for the adoption of Resolution 1325. It traces the antecedents of WPS through women’s peace and human rights activism throughout the twentieth century. It examines the texts of the first two WPS resolutions, 1325 (2000) and 1820 (2008) in some detail to determine the extent to which they can be understood as human rights instruments and contrasts the Security Council resolutions with General Recommendation No. 30 adopted by the CEDAW Committee, an overtly human rights approach to the same subject matter. It concludes that mobilization today around the WPS agenda is not so much about advancement of women’s rights as retaining the headway made in Resolution 1325.

This chapter ties together the loose threads of the discussions and presents some concluding thoughts. It considers the efforts of the Security Council to remedy some of the well-known deficiencies inherent in the United Nations Convention on the Law of the Sea (UNCLOS) rules. It describes the establishment of a threefold legal enforcement regime that depends on whether pirates are pursued on the high seas, within Somalia's territorial waters, or on its mainland. It argues that while the Security Council has considerably expanded the range of enforcement powers, as far as the level of adjudicative jurisdiction is concerned the counter-piracy Security Council Resolutions do not go beyond calling for enhanced cooperation in criminal matters and a solemn invocation of a meshwork of international treaties pertaining to crimes committed at sea. The lesson learned in the fight against international terrorism, should be heeded also when aiming to sustainably repress piracy in the Gulf of Aden, namely that unambiguous rule-of-law adherence is, in the long run, the best way to success in the repression of a criminal phenomenon.

The chapter analyses the present state of inclusion of women as peacemakers, peacekeepers, and peace-builders in both law and practice. The chapter explores the status and effect of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and United Nations Security Council (UNSC) resolutions that address women peacemakers, peacekeepers, and peace-builders. It investigates the present status of compliance measures and how they can be used. It addresses options concerning ways of influencing practice when the law does not. This chapter argues with conviction that the pursuit of peace is illusory without the inclusion of women as peacemakers, peacekeepers, and peace-builders. This chapter will assist both the scholar and the practitioner in their respective contributions to the pursuit of peace.

The chapter challenges the essentialist ethnic assumptions which underpin some interpretations of the conflict, instead, exploring the political and social construction of ethnic tension in Kosovo. Following on from this, the chapter identifies a number of key processes and actors which contributed to the marginalisation of Kosovo between 1989-99 and thus to the development of violent conflict. This historical and contextual account highlights missed opportunities for dialogue or non-violent engagement prior to 1999 and picks up the theme of inclusion/exclusion. Set against the conventional narrative of events within the Security Council, the justification of last resort drawn on in 1998-99 to permit the shift to the use of force by NATO is problematised.

This chapter examines choices over what legal form to frame a peace agreement in and the ways in which framers attempt to circumvent the limitations of positive law categories. In particular, the discussion demonstrates how the mismatch between the positive law requirements of form and peace agreement obligations has promoted innovation in legal form. It is argued that even when peace agreements are fashioned in clear legal form, their distinctiveness from other documents in the relevant legal category gives them more similarities to each other than to the agreements whose legal category they share. While peace agreements are sometimes framed as treaties or international agreements, sometimes as constitutions, and sometimes as domestic legislation they have common features deriving from their mix of state and nonstate parties which give them distinctive features from other documents in the category, and point towards peace agreements being a distinct category of document.

This chapter is the first comprehensive examination of interpretative competence. Given that international law is consensual, it is to some extent State consent that determines who may interpret treaties. There are concepts of auto-interpretation, authentic and authoritative interpretation, as well as concurrent powers of interpretation. These concepts are examined in detail. Interpretation of treaties, Security Council resolutions and unilateral acts is considered. The relevance of judicial review in terms of concurrent powers interpretation is also examined, and some national judicial practice is addressed.

This chapter describes the dual legal character of international organizations as discussed in practice and scholarship. It reviews every act mentioned by the International Law Commission in its definition of rules of international organizations: ‘the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization’. Moreover, it also includes agreements with third parties and judicial decisions, which the Commission mentioned only in the commentary to the articles on the responsibility of international organizations. Additionally, it considers general principles and customary law, not mentioned by the Commission but rules of international organizations nonetheless. The purpose is to present a variety of examples in which the dual legal character is either useful to shed new light on traditional debates or already acknowledged by practice and scholarship.

This chapter charts the growing capacity of the European Court to protect the rights of those who are not citizens of member states of the Council of Europe. The Court’s sustained commitment to robustly enforcing the right to life, the prohibition of torture and inhuman treatment, and the right to a court and judicial remedy facilitated the development of three strains of cosmopolitan jurisprudence. The first operationalizes the Kantian principle of hospitality, covering expulsion, extradition, and the treatment of refugees. The second extends protections to persons whose rights have been violated by states who are not parties to the Convention, or by state parties exercising jurisdiction outside of Convention territory. The third instantiates dialogues with other treaty-based regimes when it comes to overlapping obligations to protect rights. These dialogues suggest that constitutional pluralism is an emergent property of the structure of international law beyond Europe.

This chapter examines the US strategy of formal sponsorship in the multilateral anti-piracy campaign off the Somalian coast and in the Gulf of the Aden. It begins with a famous vignette – the rescue of Captain Phillips from pirates depicted in the movie of the same name. The objective of the chapter is to describe and explain why successive American presidents have pursued a bipartisan policy of supporting multilateral naval operations in the region without assuming a leadership position. It discusses the American operational role in the provision of communications platforms, logistics and patrolling vessels – and the US’ contribution to a very successful campaign on the high seas with a variety of EU, NATO and “independent” partners.

This chapter lays the historical foundations for the book by providing an account of gender reforms in peacekeeping operations. It explains how implementing gender reforms became a part of international peacekeeping mandates. Specifically, it goes into depth about the evolution of gender mandates before and after the passing of UN Security Council Resolution 1325, including the UN's two most recent evaluations of peacekeeping from 2015. The last part of the chapter highlights the success of current gender reforms, including those related to participation, protection, and gender mainstreaming. In particular, it notes increases in women’s participation in peacekeeping; shows that peacekeeping missions lead to a higher probability of gender reforms domestically; and highlights decreases in the incidents of sexual exploitation, abuse, harassment, and violence in peacekeeping missions, as well as the ability of peacekeeping missions to address conflict-related sexual violence. The chapter concludes with a discussion on gender mainstreaming.

National reconciliation efforts include the disarmament, demobilization, and reintegration (DDR) of former combatants and others affected by the war, demining, and the rehabilitation of basic services and infrastructure. This chapter argues that governments need to carry out these efforts continuously and implacably, from the early emergency phase to the end of economic reconstruction, when the country moves back to normal development. The chapter analyzes the danger that peace agreements and UN Security Council resolutions build up unrealistic expectations; the importance of ensuring proper planning, financing, synchronization, and sustainability of all peace-related programs until their full completion; the difficulty of moving away from emergency programs and humanitarian aid to the effective utilization of reconstruction aid to rebuild infrastructure, services, and other investment; and the role of governments, donors, and public-private partnerships in rebuilding and financing infrastructure. It also analyzes the rules for national reconciliation to ensure that past violence is addressed.

This chapter is a case study of Kosovo. It looks at the background to Kosovo’s claims to self-determination: its position in Yugoslavia, the breakup of that state and the experience of the province under Serbian rule leading to NATO intervention and the establishment of the United Nations’ administration, UNMIK. It outlines the effect of UNMIK in creating an institutional framework in which Kosovo declared its independence. It also considers the legal position of Kosovo in declaring independence. The province had no right to secede under Yugoslav or Serbian law and it is argued that it does not have a general or remedial right to independence under international law. However, the International Court of Justice’s advisory opinion on Kosovo in 2010 has revealed a real debate among states on whether such a right exists.