Social Movements and the Legal Field: Becoming-Constituent

The relationship between social movements and the legal field is controversial and complex. This paper begins by recognizing that the concept of social movement does not belong to legal doctrine and then synthetically reconstruct the relevance of it for a legal understanding. In fact, even if this concept is not formally taken into account by constitutions or by legal codes, a socio-legal approach underscores the need for the comprehension and inclusion of collective phenomena into legal theory. First, the paper explores the way in which ‘social movement’ has been taken up and translated in the legal field through the concept of social change and constitutional change. Second, this research goes through various cases in which social movements use law strategically, from the phenomenon of cause lawyering to the litigation strategy. Finally, it stands for a theoretical understanding of the role of social movements in legal theory as a lively expression of ‘becoming-constituent’.

The Institutional and Constitutional Aspects of the Arab Maghreb Union and the Dispute on Western Sahara as an Obstacle: What Role does the European Union Play in Promoting Maghreb Regional Integration?

The current era is witnessing a proliferation of challenges of a transnational character that do not recognize the geographical limits of sovereign States, such as human traficking and pollution. Therefore, States have to establish new regional cooperative methods to find effective solutions for these challenges. Although the Maghreb States (i.e. Algeria, Libya, Mauritania, Morocco and Tunisia) have been suffering from the negative impacts of such challenges over the last few decades, they have not yet created an effective regional cooperative framework. In this respect, since its establishment in 1989 among the Maghreb States, the Arab Maghreb Union (AMU, Union) has not been successful in stimulating Maghreb regional integration. The current study addresses a topic that has not yet been fully exploited by legal studies in the English language. It examines, first, the genesis and institutional structure of the AMU as well as the constitutional aspects of the 1989 AMU Treaty; second, the role of the EU’s multilateral and bilateral instruments in promoting Maghreb regional integration; and third, the dispute on Western Sahara between Morocco and the Polisario Front and its effect on Maghreb regional integration. The article concludes that Maghreb regional integration has so far failed due to the institutional and constitutional limits of the AMU Treaty and the political division among the Maghreb States resulting from the Western Sahara conflict. In addition, the EU so far has not followed a consistent and single approach in promoting the Maghreb integration nor did it play any role in solving the dispute on Western Sahara.

Sustainable Development Goal 16 at a Cross-Roads

The negotiation process of the Sustainable Development Goals (SDGS) process was extremely ambitious. It sought to remedy all the shortcomings of the Millennium Development Goals (MDGS) by ensuring transparency, ownership of the countries of the Global South, strong involvement of civil society groups and stakeholders, and creating a truly transformative set of sustainable development goals. Yet, it did not manage to avoid all the mistakes that were characteristic of the formulation of the MDGS. In addition, it struggled with its very own problems. The article traces the developments and debates that led to the formulation of Goal 16 on the rule of law. It shows that the success of this ambitious goal largely depends on the refinement of the indicator framework and the review mechanism.

Disaster Militarism? Military Humanitarian Assistance and Disaster Relief

Military assets, which include personnel, make an important contribution to disaster relief. However, military deployments can be politically sensitive, and the relevant international law is contested and not binding. This article compares two sets of UN Office for the Coordination of Humanitarian Affairs (UN OCHA) Guidelines on this issue. The 2007 Oslo Guidelines1 state that military assets should be used in disaster relief only as a last resort, while the 2014 Asia-Pacific Regional Guidelines2 acknowledge that military assets are often the first to respond to disasters in the region. Drawing on examples primarily from Asia, this article explores the apparent conflict between these two UN Guidelines and asks two questions about the deployment of foreign military assets in disaster relief. First, to what extent does international law authorize or limit the deployment of foreign military assets in disaster relief? Second, what are the politics of deploying military assets in disaster relief? This article argues that, rather than representing a global standard, the Oslo Guidelines better reflect European practice within Europe, while the Asia-Pacific Regional Guidelines are more representative of practice worldwide. It concludes that the type of military aid provided is key to its compliance with international law and its political acceptance.

The Nomadic Sense of Law in an International Constitutionalism

This article examines the place of Nomadic peoples in an international constitutionalism. The article claims that an important element of a Nomadic culture is its sense of law. Such a sense of law differs from a constitutionalism which has privileged fundamental principles aimed to constrain acts of the executive arm of the State. Such a constitutionalism is shared by many contemporary domestic legal orders. Public international law also takes such a constitutionalism for granted. In the focus upon rules to constrain the executive arm of the State, the sense of law in Nomadic communities has slipped through arguments which the jurist might consider inclusive of the protection of such communities. This problem is nested in a legacy which has weighted down the history of European legal thought. The article initially identifies three forms of nomadism. The social phenomenon of nomadism has been the object of juristic commentary since the Greeks and Romans. The image of Nomadic peoples in such a legacy has imagined Nomadic peoples as lawless although the article argues that a sense of law has existed in such communities. Such a sense of law contradicts a State-centric international legal order. Public international law has reserved a special legal space relating to Nomadic peoples. The article identifies four arguments which might be rendered to protect Nomadic peoples in such a State-centric international community. Problems are raised with each such argument

Lessons from the ILC’s Work on ‘Immunity of State Officials’: Melland Schill Lecture, 21 November 2017

The topic Immunity of State officials from foreign criminal jurisdiction has been on the programme of work of the International Law Commission since 2007. After ten reports from two Special Rapporteurs, by June 2019 it has yet to complete a first reading, not least because the topic has proved highly contentious both within the Commission and among States. The Commission could only adopt a central provision (on exceptions to immunity ratione materiae), exceptionally, having recourse to voting. There are several lessons to be learnt from the handling of the topic over the last twelve years, including for such crucial aspects of the Commission’s working methods as the choice of topics; the need for a clear view of the Commission’s aim in taking up a topic; the need for rigour in assessing the current state of international law; the importance of dialogue, within the Commission and between the Commission and States; and the utility or otherwise of voting.

The International Regulation and Governance of Time

The paper examines the system for the regulation and governance of time, both with respect to the time of day (i.e., clock readings), and calendar dates. Sub-topics of the two areas include the definition of Universal Time Coordinated (UTC), time zones, daylight saving time, and the International Date Line (IDL). The analysis begins, for both areas, by briefly sketching out the scientific background—without which the subsequent legal and institutional discussion would not be meaningful—and the historical development. It then goes on to describe the present-day mechanism for the regulation of both areas. This examination will reveal noteworthy differences: whereas the regulation of clock readings is based on a complex interplay between national statutes and government laboratories, international organizations, and non-governmental organizations, hardly any formal legal or institutional framework is in place for the regulation of calendars. An explanation for this discrepancy is suggested. The paper then proceeds to address questions of interpretation where international legal instruments make reference to time without specifying the relevant time reckoning system; a solution is proposed which builds on 19th-century domestic litigation, adapted to the context of public international law. A final paragraph draws more general conclusions and undertakes a brief outlook into the future.

Case Comment: Navtej Singh Johar v. Union of India: The Indian Supreme Court’s Decriminalization of Same-Sex Relations

The Indian Supreme Court’s judgment in Navtej Singh Johar, delivered in September 2018, decriminalizing same-sex relations in India, generated a storm of discussion and debate, in both India and in the world beyond. Apart from its clear and sharp verdict that held that the Indian Constitution protected the rights of the LGBTQ+ community, the decision was also noteworthy because it reversed the Court’s own prior judgment, delivered a mere five years before (in 2013), that had upheld the constitutional validity of the law that penalized same-sex relations. In this case comment, we set out the chronology of judicial decisions that led to the final judgment in Navtej Singh Johar: the judgment of the High Court of Delhi in 2009, which first decriminalized same-sex relations, the 2013 judgment of the Indian Supreme Court that reversed it, and the various judicial proceedings that continued to rumble on in the Court—an additional round known as the ‘curative hearing’, and separate litigation on the constitutional status of the right to privacy. Within this context, the paper then discusses the multiple opinions that were delivered by the Bench in Navtej Singh Johar, and examines the reasons on the basis of which the Court held that Section 377 of the Indian Penal Code—insofar as it criminalized same-sex relations between consenting adults—violated the fundamental rights to equality, nondiscrimination, freedom of expression, and life and personal liberty, guaranteed by the Constitution of India. The article will conclude by setting out some possibilities for the way forward, in light of the judgment.

Institutions of International Law: How International Law Secures Orderliness in International Affairs

This article is a plea for adopting a reinvigorated, analytic perspective on contemporary international law, building on MacCormick’s powerful insights into law’s essential structure. The article proposes that international law as whole forms an institutional normative order. The idea of institutional normative order has certain conditions. These link a normative conception of international law with the means of achieving it. The article makes three arguments on these conditions. It first argues that the function of international law is to create order in the sense of orderliness for its principal users, States and international organizations. It then claims that international law establishes normative order through international rules that are binding from the viewpoint of States and international organizations. An international process of rule-making embedded in State practice turns norms into such rules. The process is being held as a bindingness-creating mechanism because it formalizes rules through recognized means and organizes collective consent to authorize them. States and international organizations then apply these rules by exercising international legal powers under a defeasible presumption of legality. Third, the article argues that this normative order becomes institutionalized. The institutions of international law are grounded in ideas about agencies, arrangements, and master-norms that integrate the mass of international rules and principles. The article exemplifies these arguments for UN-driven international law with the relating recent jurisprudence of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and Annex vii tribunals, and the Court of Justice of the European Union. The upshot of this idea of international law as institutional normative order is unity, or indeed a system. No part of international law can be seen outside of this context and hence the burden of argumentation is on those wishing to make the case for divergence.