This chapter will provide a forensic analysis of the threshold of NIAC and is divided into five sections. The first section briefly explores the distinction and relationship between the material elements of NIAC and the threshold of NIAC. In particular, it identifies the overarching theme of NIACs threshold and proposes a three-step analytical process for determining its existence in practice. The second section explores the first step in identifying the existence of a NIAC, referred to here as the qualification of armed violence, which involves identifying the material elements of NIAC within a situation of armed violence. The third section examines how armed violence is evaluated when determining the threshold of NIAC, and in particular, how the expression ‘protracted armed violence’ has been and should be interpreted. The fourth section explores the organizational requirement of NIACs threshold, including the rationale for this requirement, the degree of organization necessary to qualify as a Party to a NIAC, and what organisation looks like in practice. The fifth section provides a typology of armed group organisation, which is examined through the lens of the ability to engage in NIAC. The sixth section concludes by examining the very fulcrum of conflict identification: the question of who or what decides when a situation of armed violence amounts to a NIAC.

Reparation programmes for redressing human rights harms form a central pillar of transitional justice. Reviews about the success of such programmes, however, remain mixed: in terms of outcomes, they often fail to meet the justice needs of affected populations; in terms of process, there is agreement about the importance of meaningful participation, but only a minimal understanding of how to carry this out effectively. To develop a sound theoretical framework to guide actors interested in developing reparations programmes, this chapter builds on the theory of relational justice to provide both an instrumental and legal justification for inclusive processes in the design, implementation, and evaluation of reparations programmes. We argue that reparative processes should be mindful of building and repairing relations, especially between affected populations and the government that failed to protect them. We conclude by proposing four criteria we believe are fundamental for taking a relational justice approach to reparations.

This chapter analyses the relationship between takeover bids and corporate sustainability. Specifically, we ask how boards (should) deal with sustainability issues under company law, including national rules implementing the EU Takeover Directive, either before or after the launch of a takeover bid, especially if the bid is hostile. Resistance to hostile bids motivated by ESG considerations was undoubtedly unlikely at the time of the adoption of the Directive, when takeover bids were mainly aimed at increasing shareholder value and the protection of stakeholder interests mainly concerned creditors and employees. After a brief introduction to the economic and legal literature, we present three case studies in which a hostile bid was either rejected by the target board for reasons that included sustainability concerns, or accepted by the target board for reasons that mainly concerned shareholder value. We then discuss whether and to what extent the target board’s resistance to a hostile bid could be based on sustainability concerns. We also consider whether and to what extent defensive measures could be justified by the target board’s sustainability concerns.

While it is almost trite to emphasize that non-international armed conflict (NIAC) is the predominant form of armed conflict today, less well-known is that ‘irregular’ or ‘guerrilla’ warfare has been the predominant form of warfare throughout human history. The ancient city-states of Mesopotamia, the Han dynasty of imperial China, and the Roman and British Empires were all confronted by various forms of civil strife or insurgent citizenry that challenged their authority through armed resistance. Moreover, these ancient and asymmetric rebellions reveal that many of the defining features of modern NIACs, including foreign fighters, targeted killings, and acts of terror, are far from novel, but rather, have been defining features of ‘irregular warfare’ for thousands of years. What is a comparatively recent development, however, are the various ad hoc efforts to define, classify, and regulate rebellions and insurgencies within international law.

This chapter constructs a theoretical framework for analysing the interaction between market regulation and private law. It explores the meaning of each concept in the context of multilevel and heterarchical European private law. Drawing on a variety of perspectives from legal and regulatory scholarship, the chapter outlines the distinctive rationalities and characteristics of traditional private law as a state-backed bastion of interpersonal justice and those of EU private law as a subset of market regulation beyond the nation-state. These two different accounts of private law reveal conflicts between the core values that underpin EU and national private law and that inform their interface, reflecting intense academic and policy debates. The chapter identifies three such dichotomies: the one between the pursuit of the pan-European common good and interpersonal justice, the one between legal certainty and individual fairness, and the one between uniformity and diversity. These dichotomies highlight major tensions between public and private interests in the areas subjected to EU harmonisation and beyond. The chapter also reveals that the interaction between market regulation and private law can be viewed as a spectrum that ranges from almost none to fairly extensive, and conceptualises the role of fundamental rights in this context.

This chapter addresses the enforcement mechanisms of the EU Takeover Directive (TOD) and the discrepancies of such regimes among EU Member States. The TOD mandates certain measures, such as the mandatory bid rule to protect minority shareholders, but leaves enforcement to national law. The contribution examines the public and private enforcement models, highlighting the strengths and weaknesses of each. Germany relies heavily on public enforcement by the Federal Financial Supervisory Authority (BaFin) to enforce takeover rules, focusing on administrative sanctions but being reluctant to implement private legal remedies for minority shareholders. Italy, conversely, allows for private enforcement through the courts, enabling shareholders to claim damages for breaches of the mandatory bid rule, as demonstrated in the landmark case Fondiaria-SAI. The chapter argues for more harmonization of enforcement mechanisms within the EU and advocates the inclusion of a civil liability regime in the TOD. The authors emphasize the importance of a balanced approach. In particular, the introduction of a programmatic rule recognizing a private right of action against the bidder for failure to launch a mandatory bid is recommended.

This chapter develops the theoretical explanation of why transitional justice processes and the reckoning of a repressive history can prevent the outbreak of large-scale criminal violence in new democracies. It first discusses a new conception of organized crime where complicit state specialists in violence are central players in illicit economies and in the production of large-scale criminal violence. It suggests that these engagements often emerge in autocracies, where autocrats allow military and police forces to capitalize on their repressive power to kill political dissidents and on their de facto impunity to control the criminal underworld. If left unaccountable, authoritarian specialists in violence can become leading actors in the production of criminal violence in democracy by defecting to fight turf wars or defending organized criminal groups from positions of power or spearheading Wars on Drugs, Gangs, or Crime. It claims that when new democratic elites expose and sanction authoritarian specialists in violence through robust truth commissions and criminal trials, they unleash a powerful accountability shock that breaks state impunity and deters security forces from using state coercive power to control illicit economies through lethal force. Failure to reckon with a repressive history, and the survival of the violent state, sets new democracies on trajectories of power abuse and criminal wars.

Britain’s constitutional evolution falls within the mainstream of European constitutional traditions, but the gulf between its governing practices and those adopted in the European mainstream has grown progressively wider. While most European nation-states have adopted written constitutions at critical moments of modern history, Britain continues to adhere to the traditional conception of a constitution as a set of laws, customs and practices that continuously evolve in response to social, economic and political change. This is one reason why Britain’s involvement in the venture of creating a European Union has always been rather awkward. In this chapter, I sketch the main constitutional tropes that have emerged in British thought and show how they express a constitutional identity antithetical to the assumptions driving the project of continuing European integration. I first introduce a series of constitutional stories through which the English have sought to explain themselves as a nation and a state and then consider how these accounts have evolved with the expansion of the English state into a British imperial state. Finally, I will indicate how these legacies ensured that Britain could never become an active participant in the European federal project.

This book focused on the concept and contours of Non-International Armed Conflict under international law. Its primary purpose was to provide normative and doctrinal guidance for identifying NIACs in real-time in order to determine the applicable frameworks of international law. The concept of NIAC emerged from the adoption of the four Geneva Conventions of 1949 as an inverse formulation (not of an international character) of an indeterminate concept (armed conflict) foreign to the lexicon of IHL. This lack of clarity provided states with decades of broad discretion to either deny or assert the existence of a NIAC, regardless of the prevailing facts on the ground. Some 70 years later, the concept of NIAC has evolved considerably through various developments in international law and practice, although has not been stretched beyond its normative or legal foundations. At its most basic, a NIAC is an armed conflict between a state and a non-state actor, or between two or more non-state actors absent the involvement of a state. Accordingly, a NIAC is defined on the basis of the legal status of the opposing Parties as opposed to its territorial delineations, and therefore should not viewed as an internal armed conflict. This book provided a comprehensive and critical analysis of six elements of NIAC, which formed into six distinct Chapters.

The Epilogue assesses the aftermath of Britain’s decision to abolish the death penalty in the Caribbean Dependent Territories. It examines the mostly critical reactions of political leaders in the Caribbean and the events that led to abolition through local action in Hong Kong in 1993 and Bermuda in 1999. In the case of Hong Kong, Britain was ambivalent about the decision, which was influenced by the pending handover to China in 1997. By contrast, Britain’s new Labour government claimed it would impose abolition on Bermuda through Westminster legislation if local authorities did not act. Even so, abolition was a local initiative led by the Progressive Labour Party, which had opposed the death penalty since the 1970s. The Epilogue also considers the fate of the last condemned prisoners in British Dependent Territories, who were reprieved in the early 1990s and eventually released in the 2010s, and the legacy of colonial capital punishment on British death penalty policy.

Chapter 7 presents the first analysis of the abolition of the death penalty in Britain’s Caribbean Dependent Territories in 1991 based on recently declassified government records. The decision to impose abolition reflected the broad changes in crime and governance in the Caribbean over the preceding decade and the new diplomatic significance of British death penalty policy, but in the short term it was entangled with a scheduled execution in Anguilla and a dozen more capital cases that were pending in other Caribbean Dependent Territories and Bermuda. Britain was forced to abolish the death penalty in part because the likelihood of an execution seemed higher than in many years. The appointment of Douglas Hurd, an abolitionist, as Foreign Secretary was also important, but even so the change of policy was motivated by politics rather than principle. Abolition had been forced on the government as the only sure way to prevent executions that – it had become clear – posed intolerable risks to British interests, but Britain was still far from adopting a consistent abolitionist foreign policy.