In This Issue

This issue opens with an article by Andreas von Arnauld, who discusses state responsibility for past injustices apparently considered legal at the time. To mitigate the problem of retroactivity associated with such responsibility, von Arnauld suggests a broader understanding of the law, which reads into it contemporary ethical principles. He argues that, as a minimum, the violation of such legal-ethical principles should give rise to a state obligation to give satisfaction to the victims. In the following article, Vincent Beyer challenges the common assumption that World Trade Organization (WTO) members have a preference for dispute settlement under WTO rules over those provided for in preferential trade agreements (PTA). Using network analysis methodology, he argues that when PTA partners turn to the WTO they usually do so not because they choose that forum, but rather because the PTA network is unable to act as a substitute. Subsequently, Marco Longobardo addresses the question whether a domestic court can deny a foreign state’s immunity as a countermeasure in cases of gross violations of jus cogens rules. He replies in the negative, grounding his view in state practice, and emphasizing that countermeasures should be adopted by the political rather than the judicial authorities of a state. The section concludes with Yejoon Rim’s discussion of statehood. Seeking to explain how a state can continue to exist even if its government has dissolved, she offers a distinction between the constitutive and continuative elements of statehood. Further, she suggests reframing the element of government as an entitlement belonging to the people who may reconstruct it.

The next section features a Focus on Business and Human Rights. Neli Frost calls for the adoption of a ‘new governance’ approach to international human rights law. Rejecting the positivist, state-centric ‘old governance’ approach, this new approach recognizes that in the current decentralized global environment, transnational corporations are not only potential violators but also norm-generators and enforcers of human rights. Pushing the legal subjectivity of business entities one step further, Andreas Kulick examines the status of corporations as human rights bearers. Pursuing a functionalist approach, he argues that rather than empowering the already powerful, granting corporations certain human rights entitlements can actually curb their influence.

Roaming Charges – ‘Gendering’ – is a photographic commentary of the power of corporations in the social construction of reality.

The following section is dedicated to a Symposium on the Use of Force and Human Rights. In the Introduction, Dapo Akande and Katie Johnston present the trigger for the symposium: namely, the adoption of General Comment no. 36 on the Right to Life by the United Nations Human Rights Committee in October 2018. Providing that acts of aggression resulting in deprivation of life violate ipso facto the right to life, General Comment no. 36 has generated important questions about the relationship between jus ad bellum and international human rights law. One such question, Eliav Lieblich observes, concerns the promises and perils of the humanization – or individualization – of jus ad bellum. While subjecting inter-state interactions to human rights considerations is, in principle, morally desirable, in practice it runs the risk of depoliticizing war. Kevin Heller identifies a similar tension in the legalization of unilateral humanitarian intervention. Whereas in theory, the use of force for humanitarian purposes can serve as an effective mechanism for protecting civilians, historical record suggests that unilateral interventions are primarily motivated by political interests, and do not generally improve the humanitarian situation in the target state. It is therefore commendable, according to Heller, that as a matter of positive law, unilateral humanitarian intervention remains prohibited under jus ad bellum. Concurring with the observation that the primary rules of international law do not permit humanitarian intervention, Federica Paddeu considers whether the secondary rules of state responsibility, in particular the defence of necessity, can provide a legal basis for such intervention. She replies in the negative, explaining that due to the jus cogens nature of the prohibition on the use of force, necessity-based arguments – whether they take the form of justification, excuse, or mitigation – cannot provide an adequate legal basis for humanitarian intervention. The symposium closes with an epilogue article by Dapo Akande and Katie Johnston, who offer some reflections on the structural barriers to the development of rules permitting the use of force to protect human rights.

On the Last Page, Andreas Gryphius, writing in the 17th century with a voice that could well be mistaken as contemporary, reminds us that all things are impermanent in this world, including ‘Man – Time’s plaything’.