Search Results

This chapter focuses on the lack of legal consensus regarding how non-State violence is categorized and the requirement to determine when the thresholds for an armed conflict are met. The complexity of non-State actor conflict has resulted in an array of legal interpretations regarding conflict categorization. Non-State actor violence is variously linked to inter-State conflict, categorized as a conflict having an international character, as “extraterritorial law enforcement”, transnational armed conflict, or as noninternational armed conflict. In applying a “totality of the circumstances” approach and other recognized criteria, the threshold for armed conflict is demonstrated to be lower than sometimes suggested. The lack of agreement on the approach to be adopted when assessing non-State actor conflict points to the traditional interpretations of criteria developed pre-9/11 to categorize conflict being ill-suited to assess this form of contemporary violence.

States increasingly find themselves in competition and conflict with non-State actors, including terrorist networks, insurgencies, separatist regimes, criminal cartels, and other groups. The effects of the law and practice of recognition—including the recognition of States, of governments, and of belligerencies—on conflicts with such illicit non-State actors has been underappreciated. The rules of recognition are not external to these conflicts; they interact with the strategy and the tactics of the parties to the conflict and of third-party States. While States have access to global markets, judicial protections, and the privileges and immunities of sovereignty, unrecognized entities use illegal strategies to find necessary resources to continue their fight. This chapter describes the range of actors that are both involved in violent conflict and also operate on the fringes of recognition. It will review the various aspects of law of recognition and consider practices old and new in order to understand the effects of recognition decisions, including how recognition interacts with the laws of armed conflict. It will also discuss how nonrecognition affects access to resources, such as financing and skilled labor, and the variety of responses by unrecognized entities. To understand the strategy of the illicit non-State actors in conflict with States, one must not only appreciate their motivations and goals, but perceive their constraints. The political economy of conflict is not separate and apart from the public international law of recognition; they are intertwined.

This chapter discusses the various legal bases for the use of force, including national self-defence and the criteria for national self-defence, examining the law governing the initiation of the use of force, jus ad bellum. It also looks at the various command and control systems applicable to both the operations and the operational planning process. Further, it discusses the role of non-State actors in the context of national self-defence as well as the use of force on the territory of third States in the context of a non-international armed conflict.

The use of force against armed groups located in other States is not new, but began receiving heightened attention as a result of U.S. operations in Afghanistan following the attacks of September 11, 2001. The high-profile nature of these events, the resoluteness with which the United States asserted its right to self-defense against an armed group, and the international support that it received all led to increased attention to the surrounding legal matters. Much of the debate centered upon the basic question of whether a State has a right to self-defense in response to attacks perpetrated by a non-State actor located in the territory of another State, absent attribution of the attack to the other State. Other important issues included the classification of hostilities between the State and such a group, and rules governing the conduct of the parties. This chapter sets out to draw together the threads of these debates from the last fifteen years, to analyze new questions that have emerged, examine how they impact upon each other, and suggest a way forward for overcoming legal challenges.

This chapter consists of two parts. The first part looks at the meanings and the main implications of the concepts of “cultural property” and “cultural heritage”. It then examines the symbiosis between cultural heritage law and human rights law. The objective is to discuss the role that the human rights associated to culture (cultural rights) may have with respect to dispute prevention and dispute resolution. The second part of the chapter provides a working definition of “international dispute” and an overview of disputants, disputes, and dispute contexts. This survey aims at identifying the variety and complexity of clashes of interests and the substantive legal and political issues typically involved in the disputes arising in the cultural heritage realm.

In modern warfare, military forces are expected to use lethal or potentially lethal force in a variety of contexts ranging from combat operations against the adversary to maintaining law and order or responding to imminent threats to life or limb. In practice, it may not be easy to distinguish between these various situations, which may overlap, as for instance when fighters hide among rioting civilians or demonstrators. Situations of violence may also be volatile and quickly evolve from mere civilian unrest to armed clashes. This factual or operational complexity is accompanied by a legal complexity. Different legal regimes and “paradigms” govern the use of force. From an international law perspective, the use of force by armed forces and law enforcement officials is governed by two different paradigms: the conduct of hostilities paradigm, derived from international humanitarian law (IHL), and the law enforcement paradigm, mainly derived from international human rights law (IHRL). Additionally, armed forces frequently refer to the concept of self-defense at various levels (State, unit, personal) as encompassed in numerous rules of engagement. The legal sources of these concepts and interplay with IHL and HRL remain often unsettled and deserve being clarified. This chapter aims at addressing the legal complexities in identifying governing use of force rules through the analysis of various situations/scenarios that are typical of contemporary military operations.

The conflicts in eastern Ukraine and Crimea are not the first time sovereign States have clashed under murky and confused circumstances. The law governing international armed conflict, i.e. the law regulating war between States, has long recognized this fact; the threshold to trigger it is a very low one, and it applies “even if the state of war is not recognized by one of them.” Nevertheless, some perceive Ukraine as a case of “hybrid war” for which the old rules are ill-fitting at best, and no longer capable of regulation or restraint. What happens to international humanitarian law (IHL) when, according to Russian General Valériy Gerasimov, the hybrid nature of recent conflicts produces a “tendency to erase differences between the states of war and peace?” This chapter argues that there are in fact two distinct armed conflicts ongoing in eastern Ukraine. First, there is an ongoing but unacknowledged international armed conflict (IAC) in eastern Ukraine between Ukraine and Russia. Second, there is also fighting sufficiently intense and involving sufficiently organized non-State actors to be considered a non-international armed conflict (NIAC) between the Ukrainian State and rebel forces in Donetsk and Luhansk. Adding another layer of complexity, at certain times and places, it may be that this NIAC might have transformed into an IAC because of Russia’s overall control of these non-State actors.

This chapter focuses on the well-established role of subsequent practice in the interpretative process. It begins by examining the concept of ‘subsequent practice’ in light of the drafting history of the Vienna Convention on the Law of Treaties. It also sets out the constitutive elements of subsequent practice pursuant to Articles 31 and 32 VCLT, including the non-exhaustive notion of ‘practice’ and relevant actors, the scope of the term ‘subsequent’, the related notions of subsequent practice and subsequent agreement, the meaning of practice ‘in the application of the treaty’, and, crucially, the requirement of establishing the parties’ agreement. The chapter then explores the varying role accorded to subsequent practice by different dispute settlement bodies in the interpretative process, and, particularly, in relation to two special forms of dynamic interpretation: evolutionary interpretation and the doctrine of implied powers.

It is almost trivial to observe that the law applying to modern armed conflicts is full of complexities. Such complexities are, after all, the bread and butter of legal academics, who have produced mountains of books and articles on the various relevant topics, but the extent of these complexities can be overstated. While legal academics debate the finer points of the interaction between international humanitarian law (IHL) and international human rights law (IHRL), in the majority of today’s armed conflicts the law is reasonably practical and clear. It might not be complied with, but that is not because of its supposed complexity or lack of clarity. If, for example, the parties to armed conflicts with the highest cost in human lives and property (e.g., in Syria or Yemen) observed only the bare fundamentals of the principle of distinction, the world would be spared much suffering. Noncompliance has little to do with the law’s complexity. But complexity is nonetheless a major feature of a subset of modern armed conflicts, especially those involving foreign intervention by Western powers. The purpose of this chapter is to clarify our understanding of how complexity works, where it comes from, and how it is managed. To do so, this chapter first develops two themes: the multiple causes of complexity and the decentralized system for managing this complexity. These themes are then explored in more detail in the context of the law on the use of force, or jus ad bellum, IHL, and IHRL.

The chapter considers the protection of civilians under international human rights law and notes that the role of international human rights in protecting civilians is complex. Unlike international humanitarian law, international human rights law does not distinguish between civilians and others. This chapter elucidates the debates regarding the human rights obligations of national troops operating outside of their own territory, and armed non-State actors. In the wake of the UN’s failure to avert the genocide and atrocities in Rwanda and Srebrenica, or address the human rights violations in Sri Lanka, the chapter notes a realization that human rights warnings should not be ignored, yet there remains apprehension about what the duties are of those who become aware of human rights atrocities. It finds that UN peacekeeping missions are obliged to observe human rights standards and halt human rights violations whether or not the operation has a protection-of-civilians mandate.

Legitimacy is a critical factor in operations. States strive to maintain legitimacy of their operations for a variety of reasons. The essence of legitimacy on the battlefield is conducting operations in a manner that enables the fighting force to gain and maintain moral and legal authority. Whenever fighting takes place on a cluttered or complex battlespace, legitimacy is brought to the forefront as the potential for civilian harm is often increased. The desire for legitimacy is perhaps the main reason States voluntarily cede sovereignty to comply with international law. Adherence to the law of armed conflict is a necessary and key component of legitimacy. States, as the primary developers and adherents of international law, created the current law of armed conflict construct and are responsible for ensuring its continued viability. States understand that legitimacy and compliance with the law help shape ultimate victory in complex battlespaces. States further recognize that the law of armed conflict only functions properly when there is a delicate balance between the fundamental principles of humanity and military necessity. In recent years, however, States have been subject to attempts from external entities to tilt this balance in favor of humanitarian considerations and to reshape what are considered legitimate actions on complex battlefields. Simultaneously, States have confronted non-State actors that intentionally seek to flout international law and use it to undermine States’ abilities to respond. This chapter examines the importance of legitimacy to States and the reasons States seek to garner it through their military operations.

This concluding chapter recalls the major themes and issues addressed in Part III of the monograph, emphasizing that the invocation of self-defence (or more modest forcible reactions) in response to global security violations should be a solution of last resort. It also acknowledges that self-defence repertoire and the law of State responsibility may differ in both scope and consequences. Ultimately, this chapter argues for a strong role for the Security Council in vetting forcible responses and monitoring States’ violations of global security obligations.

The introduction frames the major issues to be addressed in the monograph and foreshadows its principal arguments. It begins by emphasizing the role of States in preventing global security violations whilst placing particular emphasis on the Security Council’s post-9/11 pronouncements on counterterrorism issues. The chapter then underscores the aim of the monograph, which is to consider the potential implementation of State responsibility by UN organs as a way to bolster global security priorities, with particular insistence on transnational terrorism as the principal case study. In so doing, it stresses that particular attention will be paid to the role of Security Council in furthering this objective. The introduction then provides a brief overview of the book’s structure and research objectives.

In the preceding chapter, Gramsci's analysis of hegemony and the state provided further insights into the Irish state's management of its gas and oil in terms of: the taken-for-granted consent citizens hold for the particular form of social, economic and political organisation of Irish society; the acceptance of prevailing ideas which serve to benefit corporate interests above society's; and the role of strands of the media in portraying the Corrib gas project as ‘essential’ for Ireland, hence building public consent/acceptance of the development. The case of Corrib gas project vividly illuminates the relevance of these concepts for understanding how the Irish state functions and manages its hydrocarbons and this chapter examines issues of consent and coercion in relation to the Corrib gas project, uncovering some of the consequences of the conflict. Scrutinising the use of state and private actor coercion in tandem with efforts at consent formation, the chapter expounds the real-life impacts of the state's approach through primary data gathered from those most affected by the Corrib gas project. In doing so, the chapter illustrates how the phenomenon of Irish state hydrocarbon management has macro, meso and micro level impacts, is shaped instantaneously by global, national and local forces, and bears all the hallmarks and contradictions of a state functioning within neoliberal capitalism.

Opposition to the Corrib gas project entered a new phase in mid-2005 when five men were jailed for refusing to obey a High Court injunction taken against them by Shell. Rather than dissuade people from opposing the project, the jailing of the ‘Rossport Five’ served to escalate resistance while projecting the issue into the country's media as a national, rather than simply local, dispute. This chapter articulates the multiplicity of issues underpinning resistance and provides historical detail on the progress of the Corrib gas project. Attention is paid to civil society reactions such as nonviolent direct action alongside the deployment of state and private actor coercive tactics to repress such dissent, juxtaposed with efforts to build consent. This chapter advances analysis of the dispute by emphasising the state's role and illustrating how the state's defective approach has led to emergent controversies surrounding potential onshore gas production via ‘fracking’ and possible near-shore oil production in Dublin Bay. Raising key questions around how and why the state developed such an approach to the management of its gas and oil, this chapter sets the scene for an examination of the historical development of the Irish model which occurs in subsequent chapters.

Contributions to the topic of consultants and public policy in France are often unbalanced and consultants are typically analysed as a secondary subject of wider studies. Drawing on the sociology of elites, this chapter argues that their circulation between the private and the public spheres invites us to reconsider the so-called French resistance to private consultants, allegedly led by senior civil service, which artificially opposes two groups that are, in fact, in a sociological position of homology. It helps understanding how an hybrid elite of general government works hand in hand in the development and diffusion of NPM ideas within the French state. The chapter summarizes the main steps which contributed to consultants’ increasing deployment in French public policies and seeks to describe the type of services they aim to deliver, as well as what decision makers may consider as their “added-value”. It argues that a critical part of their growth relies on their legitimizing effects over change. By doing so, it highlights public policies’ specific temporality and logic, as well as the national variations at stake in terms of private consultants’ involvement and the extent to which they impact French public sector.