Many industrial practices, such as the organization of working conditions or the use of hazardous substances, are no longer endemic to a specific jurisdiction. Rather, they spread through cross-border production chains or global markets for consumer products. In many cases, such regulatory issues therefore cannot be resolved within a single territory. Instead, they require the involvement of global players, such as civil society, business actors or international organizations, who can often find pragmatic solutions to global problems, even if they lack the formal authority to do so. This seems to conform to a more global trend of national government getting replaced by global governance.

What does the Canadian Constitution have to say (or not say) about Canada's recent war in Afghanistan? The question seems intellectually natural, but has seldom been asked – not least because in Canada, the fields of constitutional law and foreign affairs, in both scholarship and praxis, are often near-perfect strangers. The seldom examined second recital of the preamble to the Constitution Act, 1867 (once the British North America Act, 1867, and hereafter the ‘1867 Act'), reads that the “Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire.” The only provision of the 1867 Act that explicitly references foreign affairs is section 132, although it speaks to the implementation by Canada (legislative and executive branches) of imperial or British Empire treaty obligations. One can therefore propose with reasonable certainty that both the character and paucity of explicit language on strategy in the text of the founding legal document of the modern Canadian state betray a fundamental reality: that Canada, constitutionally speaking, was never intended or expected to be a power player of any note in the world, but, rather, was constituted as a strategic appendage or auxiliary kingdom of the British Empire— its instruments and interests subsumed to the strategic designs and direction of Westminster.

The papers gathered under this special issue draw on presentations from the International Legal Theory Workshop under the auspices of the 4th Conference of the European Society of International Law, which was held at Cambridge University in September 2010. The essays cover some key developments in international law since the fall of the Berlin Wall. In the pages that follow, you will find an examination of the rise of the notion of ‘harmonious society’ in China as well as an insightful analysis of how this concept can influence international law; a detailed study of the regime of responsibility of international organizations that has gained momentum in the wake of the proliferation of international organization since 1989; a proposal for a fiduciary theory of international human rights, conceived as an alternative model to post-9/11, interest-balancing approaches in the field of national security law; and a reflection on the endurance of the notion of rogue states and state-criminalizing approaches to international relations, beyond the confines of the Bush doctrine. These essays are started off by two papers that address, from different angles, the current state of theorizing of international law.

The concept of rupture straddles the space between revolution and reform, anarchy and order—a paradoxical term to demarcate, on the one hand, the possibility of a complete falling away of one systematization, without necessarily initiating some new regime, and on the other hand, the conditions of improvement and renewal, an opportunity of reassessment, and quite often re-entrenchment. Thus, rupture is not necessarily the same as speaking about revolution, or even emancipation for that matter, because it does not necessitate any giving up of a certain system of ideas or authority, at least not in any longstanding sense. To put it bluntly, it is neither progressive nor reactionary, but in some sense, perhaps best understood, and I will expand on this shortly, as simply the very conditions of establishing and/or maintaining any symbolic order (by which I mean the albeit uneasy synthesis of political, social, economic, religious relationships that constitute what ends up getting called a ‘system’ or ‘order'). Rupture is a strategy, in other words, of both understanding and political action, but which itself carries no necessary affiliation with any ideological disposition. We might say, therefore, to speak of rupture is to enlist a set of concerns, disagreements, traditions, ideas, and so on, that are useful when attempting not just to describe a situation, but to move towards some political decision as a group, though what exactly that would be is open to contestation.

The reality of ideological phenomena is the objective reality of social signs. The laws of this reality are the laws of semiotic communication and are directly determined by the total aggregate of social and economic laws. Ideological reality is the immediate superstructure above the economic basis. Individual consciousness is not the architect of their ideological superstructure, but only a tenant lodging in the social edifice of ideological signs.

“A harmonious society needs a stronger legal system that wields greater authority.”

“He,” the Chinese character for harmony, is now in everyone's mind when thinking about contemporary China. Harmony and other ‘Confucian values’ seem to have penetrated all spheres of Chinese society, from the Communist Party's elite to business leaders and academics. But Confucius is both used and abused: quoting the philosopher at the start of the Olympic Games Opening Ceremony in a kitsch historical extravaganza featuring 3,000 men dressed up as his disciples does not clarify the true political meaning of an increasingly ideologically eclectic regime. On the contrary, it leads, to borrow Claude Lefort's term, to further “complications.” Thus, the interest in the idea of a ‘socialist harmonious society’ stems less from what it holds aloft than from what it hides.

In 2002, the United Nations (UN) International Law Commission (ILC) decided to include the subject of the responsibility of international organizations (IOs) in its program of work. By 2011, the Commission adopted sixty-six draft articles with commentaries, known as the Draft Articles on the Responsibility of International Organizations (DARIO). The adoption of the DARIO represents an enterprise of revolutionary implications for public international law and the future development of both international law and global relations and governance. It may leverage the international personality of the IO to a status previously unknown, particularly when compared to the supreme international actor, the State.

The metaphor of the balance has long dominated national security law and policy. As Richard Posner has explained, one side of the balance “contains individual rights, the other community safety, with the balance needing and receiving readjustment from time to time as the weights of the respective interests change. The safer we feel, the more weight we place on the interest in personal liberty; the more endangered we feel, the more weight we place on the interest in safety, while recognizing the interdependence of the two interests.” While policymakers have debated the relative weight states should give to civil liberty concerns and public security concerns in various contexts, few question the general balance metaphor that structures these debates. By all accounts, interest balancing has provided the primary model for making national security law and policy worldwide since September 11, 2001.

Viewed at a certain angle, the rogue state seems to be in almost necessary relation with the idea of rupture. As Derrida put it in his 2002 lectures on Rogues, the rogue state, état voyou in franglaise,' “is someone who rattles, who shakes things up, who agitates.” Past and present rogue states like Iran, Iraq, Libya or North Korea, are associated with the acquisition of Weapons of Mass Destruction (WMD), state sponsorship of terrorism and the violation of human rights. These entities pose both external threats to other states and internal threats to their own people. Today, the phrase ‘rogue state’ may seem to be past its sell-by-date. While the term was not coined by the G.W. Bush administration, during the eight years it was in power in the United States (US), the phrase became strongly associated with the Bush Doctrine, appearing in key security documents as well as speeches. Under the banner of ‘change’ President Obama, a Nobel Peace Laureate, has distanced himself from the policies of his predecessor. The phrase ‘rogue state’ has been expunged from the current National Security Strategy, for instance.