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.

This book is an updated and lengthened version of the lectures that I gave in the Lauterpacht Centre for International Law in October 2016 as part of the Lauterpacht lecture series, which was founded in 1983 to celebrate the unique contribution to the development of public international law made by Sir Hersch Lauterpacht. In keeping with the lecture series, I sought connections between my work as a feminist international lawyer and that of Sir Hersch Lauterpacht in his long career as an academic and scholar, a barrister and judge at the International Court of Justice and, as recounted by Sir Robert Jennings, a ‘remarkable’ teacher.1 In the simplest, logistic terms, he was a lecturer at the London School of Economics prior to taking up his chair at Cambridge and he also lectured at the University of Michigan,2 both places where I hold academic appointments.

This chapter introduces the main themes explored in this book, provides an overview of the methodological framework utilized and summarizes the main claims advanced.

This chapter provides a brief overview of the book’s main themes and arguments. IP accidents should be governed by a negligence liability rule for reasons of efficiency, equity, and fairness.

This chapter outlines this book’s contribution toexisting research on the sociology of the legal profession and cause lawyering in particular. It documents how these areas of scholarship have primarily examined the activities of lawyers within democratic states, whereas our focus is on how lawyers as ‘real people’ responded to the professional challenges of practising law in the difficult circumstances of conflict, authoritarianism, and transition. The chapter then provides a detailed account of the methodology and an overview of the empirical data underpinning the study. It concludes with an overview of the remaining chapters, with reference to key themes such as exceptionalism, agency/legitimacy and memory.

The introduction sets the scene for Articulating Security, providing a snapshot of post-Millennium global security under the aegis of the United Nations, and focusing on the organization’s Global Counter-Terrorism Strategy. It explains that the principal intervention the book makes is to show that, even though this managerial security strategy has not been very effective in countering security threats, it is not without effect: specifically, it is affecting the ability of law to speak out against injustice. The Introduction sets out the three key interventions made in the book. First, it transplants Michel Foucault’s concept of disciplinary power to a globalized and flexibilized twenty-first-century context. Second, it introduces the book’s key idea of infra-law, a concept that makes sense of the relationship between managerial governance and juridico-political government. Finally, it presents law with a stark choice between articulating security and articulating justice, arguing that law must relocate its force from authority to anger if it is to serve those rendered insecure by security measures.

This chapter begins by introducing the problem of access to affordable medicines in developing countries. It describes the patent policy space available to states prior to the adoption of the TRIPS Agreement and the attempts made by developing countries to reclaim their patent policy space after the adoption of the TRIPS Agreement via the Doha Declaration on the TRIPS Agreement and Public Health. It notes that the Doha Declaration only yielded marginal gains in the form of the confirmation of the flexibilities that are already contained in the TRIPS Agreement and the introduction of a waiver system that is more burdensome and less beneficial. Nevertheless, the chapter contends that paragraph 4 of the Doha Declaration provides a linchpin that developing countries can use to preserve their patent policy space as it sanctions the incorporation of a right to health perspective, and invariably the incorporation of a model of human rights, into the design, implementation, interpretation, and enforcement of their national patent laws. The chapter also presents a roadmap for the rest of the book.

This chapter explores the foundations of due diligence under international law. Due diligence emerged in the international practice of the nineteenth century concerning diplomatic protection and the security of states, and developed as a notion linked to the responsibility of states in connection with acts of private individuals. For a long time, due diligence was conceived as a concept pertaining to the realm of international responsibility and it was primarily associated with the measure of a state organ’s fault. The chapter illustrates how, during the twentieth century, due diligence migrated from the realm of secondary rules to primary rules. The chapter clarifies the relationship between due diligence and overlapping concepts, like international liability and the notion of general principles of international law. It is argued that due diligence should be construed as an identifier for a typology of international obligations, something that provides meaning and rationale to them. The chapter concludes by clarifying the difference between due diligence as a ‘qualifier’ for primary rules of states, and due diligence as a ‘process’ linked to the activities of non-state actors.

The law of neutrality is not obsolete. Its validity subsists despite the prohibition of the use of force,the advent of collective security and the violations of the rights of neutrals during the two world wars. The sources of the law are customary laws and treaties. Customary law of neutrality is based on State practice mainly in the form of national military manuals. It is applicable in the event of an international armed conflict irrespective of the existence of a formal state of war and irrespective of the scale and extent of th conflict. Neutrality has withstood the challenge of collective security and the prohibition of the use of force both in the interwar years and after World War II. The gross violations of the rights of neutrals during World Wars I and II have been justified as reprisals or countermeasures; this is a further confirmation that beligerent practice at the time constituted a deviation from the law rather than a change or demise of the law of neutrality.

This Chapter introduces the book’s premises and general approach to the discussion of the soverign debt-human rights relatioship, together with the book’s outline. It also discusses and defines legal human rights, economic and social rights as international human rights, an the concepts of neoliberalism, neoliberal epistemolgy and law’s neoliberalisation for the purposes of the analysis that follows in Chapters 2-5.

Transnational counter-terrorism is a crowded field dominated by closed institutions. They include formal international organisations, informal international or multilateral institutions, hybrid entities, private actors, and regional organisations. National authorities and states are also part of this transnational milieu, implicated as members of international organisations and institutions, as founders and funders, as co-ordinators, and as implementers. This chapter argues that consideration of institutions is critical to achieving insight into the dynamics of transnational counter-terrorism, and in particular to understanding the flows of power, norms, and activity across different scales of transnational counter-terrorism, as well as from counter-terrorism to other fields of activity. It then considers the institutions of transnational counter-terrorism: the UN Security Council and its subordinate entities, the General Assembly, the members of the Global Counter-Terrorism Coordination Compact, and informal institutions, organisations, hybrids, private actors, and others that have been drawn into the transnational counter-terrorism order.

This chapter sets out the history of the GATT and the WTO, with particular attention to the evolution of dispute settlement in the GATT/WTO from the Havana Charter to the Uruguay Round and beyond. The chapter provides an explanation and an overview of the WTO’s Dispute Settlement Settlement Understanding (DSU), and summarizes efforts to reform the process since 1995. The chapter also discusses the assistance available to developing countries in WTO dispute settlement and provides some tips on researching WTO law. Finally, the chapter provides an overview of the current crisis in the WTO Appellate Body.

Although the nature, organisation and behaviours of ‘non-State armed groups’ (NSAGs) are issues of increasing concern for the international community, in particular due to the participation of these entities in the majority of armed conflicts, relatively little is known about them within the legal realm. When compared to other actors affecting or being affected by different regimes, normative studies dealing with the way in which these non-State entities behave seem to be scarce. This chapter examines NSAGs’ limited position within the international legal architecture. This is because understanding what these actors are allowed to do, or rather are restricted from doing, is determined by a set of rules, the creation and further development on which NSAGs had, at least a priori, no say. This basis serves to assess later in the chapter how international law, political sciences, and different institutions and bodies address NSAGs. A typology of these actors is provided for the purposes of this book.

Criminal law and criminal justice are becoming increasingly globalised. In open societies, the era in which individual jurisdictions developed their own codes, statutes and systems of justice with no regard to other systems and countries is long over. There is a growing desire to develop common approaches to common problems and to learn from the diversity of current practice in different countries. This development has been reinforced by the internationalisation of criminal justice in international and mixed criminal tribunals. However, attempts at trans-jurisdictional discourse are often hampered by mutual misunderstandings. Some problems are linguistic: although English is the new lingua franca of international and comparative criminal law, not all foundational concepts of criminal law and justice originate in the English-speaking world; some of them are rooted in civil law jurisdictions, such as France, Germany and Italy. The translation of these concepts into English is subject to ambiguity and potential error: the same term may assume different meanings in different legal contexts.

The desire for humanity and the desire for security have co-existed as long as humans have been alive. Often these desires are in conflict. In 2013, ‘Skull 5’, a 1.8 million-year-old hominid, was found in Georgia on the Armenian border.1 Skull 5 ‘was ill, his jaw was worn away from infections, and he had lost all but one tooth. No longer able to provide for himself, someone must have fed him and kept him safe from harm’.2 Skull 5’s level of nurturing by his clan ensured that he received food and care when he was unable to do so himself – evidence of a sense of humanity 1.8 million years ago.

After describing the backgrounds and roles of the Justices on the Hughes Court, the chapter examines several theories about how courts decide cases. The theories counterpose “formulas” to ideas about social needs, with Hughes, Felix Frankfurter, and Benjamin Cardozo offering versions of the latter. The theories are linked to broader conceptions of American government articulated by Herbert Croly and Arthur Bentley.

Chapter one starts from my embarrassment when teaching sources of international law. Following conventional wisdom, I inform students that international law is grounded on a limited set of sources. However, at some point, I also have to explain that it is possible for new sources of international law to emerge. How is this possible, given that international law is grounded on a limited set of sources? I try to deal with this uneasiness by comparing discourses on sources to rituals that prevail in what I call "cyclical societies," organized around the belief in the eternal return of transcendental ideas, acts or events. To apply sources, I argue, is to perform a double act of repetition. First, historically contingent events are turned into manifestations of pregiven and repeatable categories. Second, sources are used as placeholders for something that will always escape positive international law: the foundational categories that underlie the sources of law. These foundational categories, I argue, work somewhat like celestial Gods in cyclical societies: Most of the time they stay dormant and aloof, but they can always be called upon in exceptional times.

Chapter 1 articulates the process of orphanage trafficking in developing states. It explains how the recruitment of a child into an orphanage occurs and describes how the process of orphanage trafficking manipulates the procedural aspects of gatekeeping into alternative care by claiming children are abandoned or orphaned rather than relinquished. This manipulation is critical in the orphanage-trafficking process as it indicates an intent by the involved orphanage operators to utilise the alternative care framework to justify the admission of children into care. The final part of the orphanage-trafficking process is the maintenance of the child in institutionalisation for the purpose of exploitation and profit through donor funding and orphanage tourism. The chapter then turns to establishing the prevalence of orphanage trafficking in developing states across the world. To do this, it focuses on four regions where there is evidence that the rising number of children in institutional care is in part due to the presence of donor funding and orphanage tourism: Sub-Saharan Africa, South Asia, South East Asia, and Latin America and the Caribbean.

This chapter tells the history of legal fictions from the emergence of the common law in the twelfth century until the abolition of the forms of action in 1852. It begins with an overview of the procedural framework which allowed, and encouraged, fictions. It then considers eleven old fictions: (i) dominus remisit curiam; (ii) vi et armis; (iii) geographical fictions; (iv) bill of Middlesex; (v) the writ of quominus; (vi) benefit of clergy; (vii) pleading the belly; (viii) common recovery; (ix) trover; (x) ejectment; and (xi) quasi-contract. For each fiction, I identify the reason for its existence, its development, its manner of operation and its effect on the law. Importantly, the fictions are classified in a way which explains their survival or extinction. This Effect Classification distinguishes between Jurisdictional, Auxiliary and Essential Fictions. The Effect Classification plays a central role in the Acceptance Test, which is the thesis of the book.