AJIL Unbound

Journal Information
EISSN : 2398-7723
Published by: Cambridge University Press (CUP) (10.1017)
Total articles ≅ 608
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Latest articles in this journal

Eyal Benvenisti
Published: 13 September 2021
AJIL Unbound, Volume 115, pp 302-306; https://doi.org/10.1017/aju.2021.43

In “Are There ‘Inherently Sovereign Functions’ in International Law?”, Frédéric Mégret provides a deeply insightful reflection on “the essence of the state” from the point of view of international law, outlining a theory about the inherently sovereign functions in international law. He carefully identifies existing norms of international law that articulate certain public functions to be performed solely by the state rather than delegating them to private actors. Mégret offers functional and intrinsic rationales, suggesting that individuals have a right to benefit from certain public functions exercised by state authority, such as legislation and adjudication, what perhaps could be termed “the human right to the state.” In this essay, I suggest that it is indeed possible to derive such demands from the requirements of stable and sustainable governance that are embedded in the concept of sovereign responsibility, as well as from the rights associated with democracy and self-determination. I further argue that Mégret's inquiry can and must be extended also to explore the other side of the coin: the role of international law in facilitating (and possibly limiting) the delegation of public authority to unaccountable international organizations and other global governance bodies.
Samantha Besson
Published: 13 September 2021
AJIL Unbound, Volume 115, pp 307-311; https://doi.org/10.1017/aju.2021.47

Frédéric Mégret's extremely rich and interesting article implicates a wide range of issues. Luckily, a lot has already been written about some of them elsewhere. In any case, the limited scope of this essay precludes engaging with them all again here. What it will do instead is explore ways of contributing further to the article's important, timely and, I would like to argue, providential project, which is to reflect over and develop the publicness of the international legal order. I will present comments on three dimensions of that project: the language, the scope, and the institution of what one may refer to as “the international public.” My claim is that, to succeed, the article's argument should move away from the functional approach to publicness, embrace public institutions of international law other than states, and focus on the institutional dimension of international public law.
Nigel D. White
Published: 13 September 2021
AJIL Unbound, Volume 115, pp 317-321; https://doi.org/10.1017/aju.2021.45

In “Are There ‘Inherently Sovereign Functions’ in International Law,” Frédéric Mégret suggests that the fact that international legal practice has sought to preserve a state monopoly over the use of force strengthens the argument that international law considers some functions to be inherently sovereign. Mégret's analysis goes much further than this in seeking to develop a thicker and broader understanding of inherently sovereign functions (ISFs) by reasoning inductively from international human rights law. This essay largely supports this approach through a case study of the approach taken by the United Kingdom to outsourcing military and security functions. It explores an understanding of inherently sovereign functions based on the state's monopoly on the legitimate use of force and claims that outsourcing military and security functions undermines state sovereignty.
Daniel Lee
Published: 13 September 2021
AJIL Unbound, Volume 115, pp 322-327; https://doi.org/10.1017/aju.2021.44

In the recent theoretical scholarship on sovereignty, it has become commonplace to encounter the numerous ways in which state sovereignty has been quietly “outsourced” and “pooled” with other agents and institutions, especially international institutions aimed at promoting global governance and commerce. Frédéric Mégret's fascinating article, which contributes to this growing body of scholarship, adds an important twist to this literature, by focusing specifically on the privatization of state sovereignty—that is, how various sovereign functions, once thought to be essential or “inherent” to statehood, have now been outsourced and handed over to private actors. While Mégret's analysis concerns the consequences of privatized sovereignty on modern public international law, there is a rich pre-modern legal history anticipating the conceptual and normative problems explored in this piece. This essay focuses on some of those early modern sources, especially the theory of Jean Bodin (c.1530–1596), which bear a striking resemblance to Mégret's analysis. Like Mégret, Bodin, the preeminent theorist of state sovereignty, approached the concept of sovereignty by focusing on those qualities that were regarded to be exclusive.
Jean L. Cohen
Published: 13 September 2021
AJIL Unbound, Volume 115, pp 312-316; https://doi.org/10.1017/aju.2021.48

In this essay, I approach the question of privatization from a normative political theory perspective. Following Mégret's lead, I focus on the inter- or transnational domain, with the aim of making explicit the norms that undergird Mégret's analysis despite the functional approach he apparently adopts. I argue that the normative basis of the ideas of sovereignty and publicness he relies on is parasitic on the principles of democratic legitimacy developed on the level of the constitutional democratic state. Put differently, my concern is less with the potential demise of public international law that privatization seems to portend, and more with privatization's threat to democratic self-government under both domestic and international public law.
Miia Halme-Tuomisaari
Published: 16 August 2021
AJIL Unbound, Volume 115, pp 283-288; https://doi.org/10.1017/aju.2021.37

How might the connections between anthropology and international law become more dynamic? I reflect upon this question in this essay using ethnographic insights from the documentary cycles of the UN Human Rights Committee, the treaty body monitoring state compliance with the International Covenant on Civil and Political Rights. Building on recent anthropological scholarship on international organizations, bureaucracy, and documents, this essay discusses the knowledge practices and legal technicalities that characterize the international community of human rights lawyers. In particular, I reflect on the legal fiction of difference governing UN treaty bodies’ operations and the empirical sameness of participants in different formal categories in the shared community of practice of human rights lawyers. I conclude by suggesting that anthropological insights could significantly enrich our shared understanding of the diverse and subtle effects of human rights monitoring. Simultaneously such insights may offer rejuvenated inspiration for those international lawyers tackling a sense of losing faith in their discipline, both as an influential tool of world improvement and an invigorating intellectual tradition.
Mark Goodale
Published: 16 August 2021
AJIL Unbound, Volume 115, pp 289-293; https://doi.org/10.1017/aju.2021.42

This essay examines the ways in which anthropologists have tracked the rise and fall of international law after the end of the Cold War. It argues that anthropological research has made important contributions to the wider understanding of international law as a mechanism for social and political change, a framework for protecting vulnerable populations, and a language through which collective identities can be expressed and valorized. Yet, over time, international law has lost many of these expansive functions, a shift that anthropologists have also studied, although with greater reluctance and difficulty. The essay explains the ways in which particular categories of international law, such as human rights and international criminal justice, grew dramatically in importance and power during the 1990s and early 2000s, a shift whose complexities anthropologists studied at the local level. As the essay also explains, anthropological research began to detect a weakening in human rights implementation and respect for international legal norms, a countervailing shift that has broader implications for the possibilities for international cooperation and the resolution of conflicts, among others. At the same time, the retreat of international law from its highpoint in the early post-Cold War years has given way to the reemergence of non-legal strategies for advancing change and accounting for past injustices, including strategies based on social confrontation, moral shaming, and even violence.
Maria Sapignoli
Published: 16 August 2021
AJIL Unbound, Volume 115, pp 294-298; https://doi.org/10.1017/aju.2021.38

Under the banner “AI (artificial intelligence) for good,” new technologies are becoming more and more central to the agendas of global and regional institutions, as technologies to be embraced and regulated at the same time. This is indicated by the 2018 UN Secretary General's Strategy on New Technology, and by the most recent European Commission proposal to regulate artificial intelligence systems. In this essay, I discuss how anthropology and its ethnographic method could contribute to our understanding of the AI-turn in global governance, by shedding greater light on the effects that the use of this technology has for society, the work of institutions, and the production and application of international law. I argue that engaging ethnographically with AI techniques and knowledge could also bring about a transformation in governance, policy-making, and anthropological theory.
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