ARTICLE: Anarchy and International Law: The Approaches of Hedley Bull and Noam Chomsky

Are anarchy and the law antithetical? Not so, as for more than 350 years international law has governed a legal order based on anarchy; wherein no central authority exists and law functions not on the basis of coercion but on cooperation whereby States must agree to each specific laws before it is bound by its obligations. This article contemplates two manners in which an anarchist might consider international law interesting: first, as a legal system which governs an anarchical society as described by Hedley Bull in line with the English School of International Relations; and second, as a manifestation of a State system which, though illegitimate can be utilized, as Noam Chomsky does, for tactical reasons to demonstrate its inconsistencies and thus weakening the system with the ultimate aim being its implosion

Towards an Emancipatory International Law: the Bolivarian reconstruction

In this article, we argue that a unique South American treaty known as ALBA—the Bolivarian Alliance for the Americas—puts forward a cohesive counter-vision of international law rooted in notions of complementarity and human solidarity. We further argue that Third World Approaches to International Law (TWAIL) scholars might use this initiative as a springboard to push forward a long-overdue reform of the international legal regime. While, on its own, ALBA is unlikely to pose much of a challenge to the structural imbalances that permeate global society, when juxtaposed alongside the many initiatives of the Bolivarian Revolution, it appears to possess signi?cant democratic potential. With both scholarly and popular support, ALBA may even have the capability of sparking a renewal of a united Third World movement.

The International Protection of Refugees and Asylum Seekers: the Role of Article 3 of the European Convention on Human Rights

This book presents a comprehensive assessment of regional responses to the crisis in the asylum/refugee system and critically examines how different regions tackle the problem. The chapters consider the fundamental challenges which undermine an effective asylum process as well as regional difficulties with the various circumstances surrounding asylum seekers. With contributions on Africa, Europe, Latin America, South Asia and the Middle East, and the Pacific, the collection strives to appreciate what informs each region’s approach to the asylum process and asks if there are issues common to every region and if regions can learn from one another. The book seeks an understanding of the existing legal regime for the protection of asylum seekers and how regional institutions such as human rights commissions and regional courts enforce and adjudicate the law.

Terrorism Laws and Legal Accountability

This chapter explores the extent to which courts can contribute to the countering of terrorism. It suggests that the contribution will depend on the type of actor the courts are attempting to hold to account as well as on the powers that are conferred on courts by national and international legal regimes. It concludes that courts are most legitimate and effective in relation to terrorist suspects and law enforcers, but less so in relation to counter-terrorism operatives and law-makers.

International Coordination in Cross-Border Bank Bail-ins: Problems and Prospects

Bail-in is quickly becoming a predominant approach to banking resolution. The EU Bank Recovery Resolution Directive and the US Federal Deposit Insurance Corporation’s single point of entry strategy envisage creditors’ recapitalisations
to resolve a failing financial institution. However, this legislation focuses on the domestic aspects of bail-in, leaving the question of how it is applied
to a cross-border banking group open. Cross-border banking resolution has been historically subject to coordination failures, which have resulted in disorderly resolutions with dangerous systemic effects. The goal of this article is to assess whether bail-in is subject to the same coordination problems that affect other resolution tools, and to discuss the logic of international legal cooperation in bail-in policies. We demonstrate that, in spite of the evident benefit in terms of fiscal sustainability, bail-in suffers from complex coordination problems which, if not addressed, might lead to regulatory arbitrage and lengthy court battles, and, ultimately, may disrupt resolutions. We argue that only a binding legal regime can address those problems. In doing so, we discuss the recent Financial Stability
Board’s proposal on cross-border recognition of resolution action, and the role of international law in promoting cooperation in banking resolution.

An Enchanted Tool? Humanitarian Assistance and the ILC Draft Articles on the Protection of Persons in the Event of Disasters

Despite previous attempts at codification of international law regarding international responses to natural and human-made disasters, there is currently no binding international legal framework to regulate the provision of humanitarian assistance outside armed conflicts. Nevertheless, since the International Law Commission (ILC) included the protection of persons in the event of disasters on its programme of work in 2006, it has provisionally adopted eleven draft articles that have the potential to create binding obligations on states and humanitarian actors in disaster settings. Draft articles adopted include the definition of ‘a disaster’, the relationship of the draft articles to the international humanitarian law of armed conflict, recognition of the inherent dignity of the human person, and the duty of international cooperation. However, the final form of the draft articles has not been agreed. The Codification Division of the UN Office of Legal Affairs has proposed a framework convention format, which has seen support in the ILC and the UN General Assembly Sixth Committee. The overall aim of this article is to provide an analysis of the potential forms of international regulation open to the ILC and states in the context of humanitarian responses to disasters. However to avoid enchanting the ILC draft articles with unwarranted power, any examination of form requires an understanding of the substantive subject matter of the planned international regulation. The article therefore provides an overview of the international legal regulation of humanitarian assistance following natural and human-made disasters, and the ILC’s work to date on the topic. It then examines two key issues that remain to be addressed by the ILC and representatives of states in the UN General Assembly Sixth Committee. Drawing on the UN Guiding Principles on Internal Displacement, the development and implications of binding and non-binding international texts are examined, followed by an analysis of the suggested framework convention approach identified by the Special Rapporteur as a potential outcome of the ILC work.

Promoting Dignity for All: Human Rights Approaches in the Post-2015 Climate Change, Disaster Risk Reduction and Sustainable Development Frameworks

This article takes as its starting point the potentially negative human rights implications that the effects of climate change, disasters and development practices can have on individuals and communities. It argues that key international instruments, including the post-2015 successors to the Kyoto Protocol, Hyogo Framework for Action on disaster risk reduction and the Millennium Development Goals, appear to be moving towards an express acknowledgment of the relevance of international human rights law as an important mechanism to minimise potential harms that may arise. This raises the question as to the appropriate role of the UN human rights monitoring and accountability mechanisms in identifying the relevant rights-holders and duty-bearers. The article therefore provides an examination of the linkages between climate change and international human rights law, as well as discussion of the human rights considerations and accountability mechanisms for disasters and sustainable development. The article concludes by arguing that despite differential understandings between disciplines as to the meaning of key terms such as ‘vulnerability’ and ‘resilience’, international human rights law provides a comprehensive basis for promoting international and national accountability. It follows that a greater level of coordination and coherence between the human rights approaches of the various post-2015 legal and policy frameworks is warranted as a means of promoting the dignity of those most affected by climate change, disasters and developmental activities.