Amnesties in Transition: Punishment, Restoration, and the Governance of Mercy

Despite the much vaunted triumph of human rights, amnesties continue to be a frequently used technique of post-conflict transitional justice. For many critics, they are synonymous with unaccountability and injustice. This article argues that despite the rhetoric, there is no universal duty to prosecute under international law and that issues of selectivity and proportionality present serious challenges to the retributive rationale for punishment in international justice. It contends that many of the assumptions concerning the deterrent effect in the field are also oversold and poorly theorized. It also suggests that appropriately designed restorative amnesties can be both lawful and effective as routes to truth recovery, reconciliation, and a range of other peacemaking goals. Rather than mere instruments of impunity, amnesties should instead be seen as important institutions in the governance of mercy, the reassertion of state sovereignty and, if properly constituted, the return of law to a previously lawless domain.

Informed Consent: Autonomy and Self-Ownership

Using the example of an unconsented mouth swab I criticise the view that an action of this kind taken in itself is wrongful in respect of its being a violation of autonomy. This is so much inasmuch as autonomy merits respect only with regard to ‘critical life choices’. I consider the view that such an action is nevertheless harmful or risks serious harm. I also respond to two possible suggestions: that the action is of a kind that violates autonomy; and, that the class of such actions violates autonomy. I suggest that the action is wrongful in as much as it is a bodily trespass. I consider, and criticise, two ways of understanding how morally I stand to my own body: as owner and as sovereign. In respect of the latter I consider Arthur Ripstein’s recent defence of a sovereignty principle. Finally I criticise an attempt by Joel Feinberg to explain bodily trespass in terms of personal autonomy.

Celtic nationalism and supranationalism: comparing Scottish and Northern Ireland party responses to Europe

This article explores how stateless nationalist parties in the ‘Celtic periphery’ of Scotland and Northern Ireland have used Europe to advance their territorial projects. Despite vastly different historical, political and social contexts, the Scottish National Party and Northern Ireland's Social Democratic and Labour Party have both advanced a pro-European, social democratic discourse that emphasises the importance of Europe as a framework for constitutional reform and shared sovereignty. However, in recent years the parties have diverged on Europe. While the SDLP has continued its principled commitment to further integration, the SNP has articulated an increased criticism of the supranational project. This divergence in party attitudes reveals the extent to which the pro-European dimension of Celtic nationalism is ideological or opportunistic.

Which is the Only Game in Town? Minority Rights Issues in Estonia and Slovakia During and after EU Accession:Perspectives on European Politics and Society

Post-communist transition went hand in hand with the European integration process. Much of the literature on EU accession focuses on the rational decision to implement a set of European norms into domestic legislation pre-accession. It is often concluded that once EU membership is achieved, states succumb their rationality and act on the basis of internalised norms. The paper claims that the past literature overlooks the wider framework within which policy-makers operate before and after the accession, namely domestic sovereignty over policy-making and implementation. Tracing the policy dynamics in the area of minority rights in Estonia and Slovakia, we demonstrate that the European integration ushered greater domestic control over policy implementation on minority issues in two states exposed to a heavy dose of conditionality. As we observe, both states have consolidated their state- and nation-building policies referencing EU conditionality in the course of accession and later EU membership to assert centrality of domestic objectives for policy-making and implementation.

Escaping From The Past? The Falkland Islands in the Twenty-First Century

This paper discusses the competing claims for the sovereignty of the Falkland Islands in the South Atlantic, which led to a war in 1982 between the United Kingdom and Argentina, which given that it was over competing claims for sovereignty over a non-independent territory seemed to be redolent of the nineteenth rather than the late-twentieth century. Post-war developments are outlined whilst the paper considers whether or not the Falkland Islands can ever escape from the Conflict, now more than thirty years ago.

Avoidance Techniques: State Related Defences in International Antitrust Cases

Despite its economic significance, competition law still remains fragmented, lacking an international framework allowing for dispute settlement. This, together with the growing importance of non-free-market economies in world trade require us to re-consider and re-evaluate the possibilities of bringing an antitrust suit against a foreign state. If the level playing field on the global marketplace is to be achieved, the possibility of hiding behind the bulwark of state sovereignty should be minimised. States should not be free to act in an anti-competitive way, but at present the legal framework seems ill-equipped to handle such challenges.

This paper deals with the defences available in litigation concerning transnational anti-competitive agreements involving or implicating foreign states. Four important legal doctrines are analysed: non-justiciability (political question doctrine), state immunity, act of state doctrine and foreign state compulsion. The paper addresses also the general problem of applicability of competition laws to a foreign state as such. This is a tale about repetitive unsuccessful efforts to sue OPEC and recent attempts in the US to deal with export cartels of Chinese state-owned enterprises

Crime, justice and the legitimacy of military power in the international sphere

This article examines how a discourse of crime and justice is beginning to play a significant role in justifying international military operations. It suggests that although the coupling of war with crime and justice is not a new phenomenon, its present manifestations invite careful consideration of the connection between crime and political theory. It starts by reviewing the notion of sovereignty to look then at the history of the criminalisation of war and the emergence of new norms to constrain sovereign states. In this context, it examines the three ways in which military force has recently been authorised: in Iraq, in Libya and through drones in Yemen, Pakistan and Somalia. It argues the contemporary coupling of military technology with notions of crime and justice allows the reiteration of the perpetration of crimes by the powerful and the representation of violence as pertaining to specific dangerous populations in the space of the international. It further suggests that this authorises new architectures of authority, fundamentally based on military power as a source of social power.

On the Border of Indeterminacy: The Separation Wall in East Jerusalem

Drawing on a perspective which takes into account the convergences of sovereign and biopolitical ruling apparatuses, the aim of this article is to provide a comprehensive view of the Separation Wall constructed by Israel in East Jerusalem, and, through it, of Israeli control of Palestinian East Jerusalem. Neither a comprehensive border, nor a mere barrier, the Separation Wall which is being constructed in Jerusalem operates to reinstates sovereign power in arrays of governmentality for the purpose of drawing on the ability of sovereignty to appropriate legitimacy for the territorialisation of governmentality. This article claims that these territorialised arrays of governmentality give rise to processes of racialisation, by maintaining a grip on the communities of Palestinians in East Jerusalem and sustaining them in an intermediate position, standing in the way of their full integration into the Israeli population while severing their existing connections with the Palestinians in the West Bank. © Taylor & Francis Group, LLC.

International Boundaries

International boundaries are a basic building block of the modern international state system. The international system dictates a clear spatial distinction between states. International boundaries are the agreed-upon delineation of the spatial allocation of one sovereign territory in relation to that of all others. From a formal perspective, the boundaries of a state delimit the area of applicability of a particular state's sovereignty and pose the only general limitation on the autonomy of sovereignties. Clear and defined boundaries are considered a precondition to the establishment of a state, and control over its boundaries is a sovereign prerogative, whereas an unauthorized breaching of state boundaries by other sovereign powers is considered a declaration of war.

Beyond the National Resource Privilege: towards an International Court of the Environment

The national resource privilege, which holds that states are allowed to control all the natural resources found in their territory, is a cornerstone of international politics. Supporters of the national resource privilege claim that without the privilege states would fail to be sovereign and self-determining entities which provide for the needs of their citizens. However, as this paper shows the case is not as simple as that. In fact, control over resources must be carefully unpacked. Doing so shows that states do not require full control over all resources found in their territory in order to be sovereign. Moreover, sovereignty and self-determination come with a set of responsibilities and duties attached. Based on these observations the paper will sketch the contours of an alternative resource governance scheme built around the idea of an International Court of the Environment.

Getting Away With It:Corruption, Moral Indignation and the Limits of Legal Accountability

In this paper we address the idea of ‘legal but corrupt’ through a discussion of two cases: abuse scandals in the Irish Catholic Church and the financial services industry in the wake of the Global Financial Crisis. We identify two important dynamics that generated the scandals: that they were driven by strong and stable groups existing within a peculiar kind of ‘accountability space’ that we describe as ‘monastic’ and that those groups persisted with tacit or explicit support from the state. ‘Legal but corrupt’ is, we argue, a matter of insider incomprehension sustained by the ceding of sovereignty over some aspect of social or economic life.

גבול (Border)

This paper is a reexamination of the concept of the geopolitical border through a critical analysis of prevalent conceptualizations of borders, as they are articulated in the fields of geopolitics, political theory and international relations. Suggesting that thinking of borders as the derivative of territorial definitions disregards the dependency of territoriality and sovereign space on the praxes of border making, this paper offers an analytic distinction between normative articulations of borders and the border as a political practice. This distinction enables the identification of partial and incoherent border making processes. Consequently, the creation of borders can be analyzed as an effect of a multiplicity of performative praxes, material, juridical and otherwise discursive, that operate in relation to the management of space and attribute it with geopolitical distinctions. Furthermore, the paper suggests that these praxes, which appear in dispersed sites and in a wide variety of loci, are intrinsically linked to different spatial practices of population management, of governmentality. Thus, I offer a reading of borders as a praxis which manages binary differentiations of matrixes of governmentality, which create schisms in the population as a totality, through the deployment of the evocation of sovereignty as the legitimizing source of this differentiation or for the means necessary for its sustainment.

The Shifting Battleground of Article 4(2) TEU: Evolving National Identities and the corresponding need for EU management?

Article 4(2) TEU requires that the European Union (EU) respect the Member States’ national identities, creating a legal obligation enforceable before the CJEU and valuable in political negotiations. However, the concept of national identities is unclear, leaving open questions about the scope or parameters of the provision and its applicability. The CJEU appears likely to take a relatively flexible approach in light of Article 4(2) TEU’s relationship with national constitutional courts’ reserves. This flexible approach would enable Member States to rely upon a range of aspects as part of their national identity, including ones that were previously unidentified. This is a crucial feature if one considers that national identities may evolve gradually or even dramatically, including where Member States purposefully attempt to develop their national identities further. This possibility of an evolved national identity is exemplified by the French Charte de l’Environnement. It may thereby be possible for Member States to stretch the scope and application of Article 4(2) TEU through reference to these evolving national identities. This potential raises significant challenges for the EU regarding the management of Article 4(2) TEU, which it will need to address if it wishes to ensure harmonisation and uniformity in the relevant areas.

Who Knows What's Going On? Mapping New Security Landscapes in Contemporary Espionage Fiction

This article explores whether or to what extent the contemporary espionage novel is able to map and interrogate transformations in the post-9/11security environment. It asks how well a form or genre of writing, typically handcuffed to the machinations and demands of the Cold War and state sovereignty, is able to adapt to a new security environment characterized by strategies of “risk assessment” and “resilience-building” and by modes or regimes of power not reducible to, or wholly controlled by, the state. In doing so, it thinks about the capacities of this type of fiction for “resisting” the formations of power it wants to make visible and is partly complicit with.

A Eulogy to Seed Sharing: Manufacturing Genuine Scarcity

Seeds are traditionally considered as common or even public goods, their traits as ‘products of nature’. They are also essential to biodiversity, food security and food sovereignty. However, a suite of techno-legal interventions has legislated the enclosure of seeds: seed patents, plant variety protections, and stewardship agreements. These instruments create and protect private proprietary interests over plant material and point to the interface between seeds, capitalism, and law. In the following article, we consider the latest innovations, the bulk of which have been directed toward genetically disabling the reproductive capacities of seeds (terminator technology) or tying these capacities to outputs (‘round-up necessary’). In both instances, scarcity moves from artificial to real.
For the agro-industrial complex, the innovations are perfectly rational as they can simultaneously control supply and demand. For those outside the complex, however, the consequences are potentially ruinous. The practices of seed-saving and exchange no longer are feasible, even covertly. Contemporary genetic controls have upped the ante, by either disabling the reproductive capacity of seeds or, through cross-pollination and outcrossing, facilitating the autonomous spread of the genetic modifications that are importantly still traceable, identifiable and therefore capable of legal protection. In both instances, genuine scarcity becomes the new standard as private interests dominate what was a public sphere.