The Potentialities and Limitations of Reactive Law Making: A Case Study in Terrorism Suppression

The terrorism suppression treaty regime has developed in a piecemeal fashion, each treaty adopted in response to a specific act of ‘headline-grabbing’ terrorism committed by non-State actors, and with a view to ensuring there is no impunity for such type of terrorist conduct in the future. The question examined in this article, viewed through the particular prism of terrorism suppression, is ‘what are the potentialities and limitations of reactive law making’? The answer to this question in the terrorism suppression context is heavily conditioned by the historical and political context within which the treaties were negotiated, not least because these treaties are at the crossroads of criminal responsibility for non-State conduct and the rights of peoples to self-determination

Actor-pluralism, the ‘turn to responsibility’ and the jus ad bellum: ‘Unwilling or unable’ in context

With the increasing (although by no means uniquely modern) phenomenon of un-attributable NSA cross-border violence, a purely inter-state-rights based approach to Article 51 of the UN Charter is not (if ever indeed it was) sustainable. The jus ad bellum does, and should, reflect broader shifts in general international law. This article argues that (i) the ever increasing but nevertheless long-standing diversity of actors in modern international law is accommodated within a pluralistic conception of the UN Charter; (ii) the increasingly recognised shift in international law from ‘sovereignty as right’ to ‘sovereignty as responsibility’ is contextually relevant in interpreting the right to use force in self-defence; and that (iii) together, these broader shifts in general international law, as reflected in the jus ad bellum, support and inform the legal basis of a victim state’s right to use defensive force in a foreign host state’s territory in response to un-attributable armed attacks by NSAs, both via the ‘unwilling or unable’ doctrine

Exemptions, Qualifications, Derogations, and Excuses in International Human Rights Law

There is a broad spectrum of permissible qualifications to human rights in the interests of achieving a legitimate aim, and this chapter outlines a typology of qualifications and the interactions between them. This chapter argues that there is nothing inherent in the form relevant qualifications take—they may take the form of exemptions from the scope of the right, exceptions to the rights protection, or a temporally limited suspension of the obligation to respect the right or the secondary obligations which flow from responsibility for a breach. Indeed, the different qualifications overlap and the structure of analysis in respect of each can be relied on to inform the others’ application on the basis of principles of systemic interpretation. While the same legitimate aim can be addressed in the human rights calculus bearing on these qualifications, the key difference lies in the nature of judicial engagement with rights protection

Unauthorized Military Interventions for the Public Good: A response to Harold Koh

In his contribution to this Symposium, Harold Koh exhorts international lawyers to “seriously engage the debate” regarding the lawfulness (or at least the legal defensibility) of humanitarian intervention (“HI”). The aim of this essay is to take him up on that plea and sketch an alternative approach to the one that he advances. In so doing, I will focus on international law rather than U.S. domestic law

Shared Responsibility and Non-State Terrorist Actors

International law presently addresses the unique challenge to international peace and security posed by trans-national terrorism through two frameworks of responsibility: first, individual criminal responsibility; second, state responsibility. These two frameworks of responsibility are not mutually exclusive and this article develops an analytic framework for shared responsibility in the terrorism context. The framework reveals that (1) in most cases of potential shared responsibility, two sets of actors (states and non-state terrorist actors) contribute separately to a harmful outcome; (2) in cases where the terrorist conduct of non-state terrorist actors is not attributable to a state, the nature of the wrongful act committed is different, even if the responsibility is shared; and (3) where there is shared responsibility, the nature of responsibility which attaches to the wrongful acts of these distinct actors is itself different (criminal vs civil or delictual). This article further explores some of the difficulties in the interpretation and practical application of both the primary and secondary rules of international law which undermine the potential for shared responsibility in the terrorism context, or worse, are a recipe for no responsibility at all. It concludes with some alternative approaches to interpretation and application to address those difficulties

Submission to the Chilcot Iraq Inquiry on the Legal Basis for the 2003 UK Use of Force Against Iraq

On 2 June 2010, the Chilcot Iraq Inquiry invited public international lawyers in the United Kingdom to make submissions concerning the legal arguments relied on by the UK government as the basis for the military action in Iraq which commenced in 2003. The legal basis for that action, as explained by the Attorney General in his advice to the Prime Minister of 7 March 2003, was essentially that UN Security Council Resolution (‘UNSCR’) 1441 had the effect of ‘reviving’ the authorisation on the use of force set out in UNSCR 678, without requiring either a further Security Council authorisation for the use of force, or a further determination by the Security Council of Iraqi non-compliance. The focus of this submission is not on the difficult and perhaps intractable issue of the ‘correct’ interpretation of UNSCR 1441, but rather on the validity of the ‘revival argument’ as a matter of principle, as dealt with in paragraphs 7-11 of the Attorney General’s advice of 7 March 2003, focusing on UNSCRs 678 and 687. If the ‘revival argument’ fails, the interpretation of UNSCR 1441 becomes irrelevant to the question of the legality of the use of force – it is incontestable that UNSCR 1441 did not itself authorise the use of force. This submission argues that the authorisation to use force under UNSCR 678 could not support the military action in 2003, as it was strictly limited to the restoration of the territorial integrity of Kuwait, and that UNSCR 687 did not expand the scope of the authorisation under UNSCR 678 but rather terminated it and established the conditions for a cease-fire. However UNSCR 1441 is interpreted, it therefore simply could not ‘revive’ any previous Security Council authorisation, as no such relevant authorisation existed

Anthropogenic intensification of short-duration rainfall extremes

Short- duration (1-3 h) rainfall extremes can cause serious damage to societies through rapidly developing (flash) flooding and are determined by complex, multifaceted processes that are altering as Earth's climate warms. In this Review, we examine evidence from observational, theoretical and modelling studies for the intensification of these rainfall extremes, the drivers and the impact on flash flooding. Both short- duration and long- duration (\textgreater1 day) rainfall extremes are intensifying with warming at a rate consistent with the increase in atmospheric moisture (~7% K-1), while in some regions, increases in short- duration extreme rainfall intensities are stronger than expected from moisture increases alone. These stronger local increases are related to feedbacks in convective clouds, but their exact role is uncertain because of the very small scales involved. Future extreme rainfall intensification is also modulated by changes to temperature stratification and large- scale atmospheric circulation. The latter remains a major source of uncertainty. Intensification of short- duration extremes has likely increased the incidence of flash flooding at local scales and this can further compound with an increase in storm spatial footprint to considerably increase total event rainfall. These findings call for urgent climate change adaptation measures to manage increasing flood risks