The New Legal Pluralism

Scholars studying interactions among multiple communities have often used the term legal pluralism to describe the inevitable intermingling of normative systems that results from these interactions. In recent years, a new application of pluralist insights has emerged in the international and transnational realm. This review aims to survey and help define this emerging field of global legal pluralism. I begin by briefly describing sites for pluralism research, both old and new. Then I discuss how pluralism has come to be seen as an attractive analytical framework for those interested in studying law on the world stage. Finally, I identify advantages of a pluralist approach and respond to criticisms, and I suggest ways in which pluralism can help both in reframing old conceptual debates and in generating useful normative insights for designing procedural mechanisms, institutions, and discursive practices for managing hybrid legal/cultural spaces

The Influence of International Law on the International Movement of Persons

Many migration theories identify ‘the law’ as a significant constraint on the international movement of persons. While this constraint often operates through national migration legislation, this study examines the influence of international law in shaping contemporary patterns in the international movement of persons at the macro level. The analysis begins with an examination of the long-established power of a State to regulate cross-border movement of persons as an inherent attribute of State sovereignty, together with the accepted limitations on a State’s power to control entry and exit. Yet, international law reaches well beyond the movement of people across borders. The development of international human rights law has been a key constraint on state action in the United Nations era by also regulating the treatment of migrants within a State’s borders. The study considers how international law has responded to current migration issues, including: protection of migrant women and children; suppression of smuggling and trafficking of people; labour migration; and environmental migration. As in other areas of international society, there has been a proliferation of institutions through which international migration law is made and enforced. The most prominent among them are the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM), but the establishment of other entities with overlapping mandates has given rise to calls for a new international migration regime based on streamlined institutional arrangements. The study concludes that international law is an imperfect framework for regulating the international movement of persons because it has developed in a piecemeal fashion over a long time to deal with issues of concern at particular points in human history. Yet, despite its shortfalls, international law and its associated institutions unquestionably play a most important role in constraining and channeling state authority over the international movement of persons

The Principle of Sovereign Equality with Respect to Wars with Non-State Actors

The desire to defend a state against attacks by a non-state actor requires thinking about counter-attacking without violating the sovereign equality of the territorial state because targeting a non-state actor on the territory of that state may violate its sovereignty. This paper evaluates the main views on self-defense by states against non-state actors by studying the Just War Theory and argues that self-defense against a non-state actor is allowed if the counter-attack complies with the principle of sovereign equality. Sovereign equality is the prohibition of states from dominion over other states because states are equal to one another. This principle can be respected by allowing self-defense against non-state actors to occur only if the state consented to the use of force on its territory or if that state is incapable of controlling or unwilling to control the non-state actor

Open borders in the nineteenth century : constructing the national, the citizen and the foreigner in South America

This working paper describes and explains the historical origins of the division between the national and the foreigner in South America. In the early nineteenth century, all the previously Spanish possessions in South America as well as Brazil achieved independence. With this new freedom, countries turned their attention to asserting their statehood through the delineation of three constitutive elements: government, territory and population. The new governments had to define who were going to be considered as nationals, citizens and foreigners, and the rights that pertained to each of these categories. These countries were all concerned with attracting new settlers and very early on introduced constitutional provisions on open borders and equal treatment for foreigners. White, male Europeans were the principal addresses of open borders provisions in an effort to entice them to settle in territories presented as empty to the exclusion of indigenous groups, bring new industries, and contribute to the whitening of mixed race populations. Whilst weak statehood came with independence, forming nations was a much longer process and States used migration and citizenship policies as tools to define nationhood