Host State Inertia and the Neglected Potential of Sovereign Protection
The overarching focus on the United Nations and its agents for human rights violations and abuses they may have committed, as well as the attention to troop contributing states and even ‘victims’, has broadly shifted attention away from the role of the host state in peace operation. This article seeks to unpack that omission and suggests that it is far more problematic than commonly thought, in particular because it tends to reproduce some of the problematic features of the political economy of peacekeeping that are the background of rights abuses in the first place. Instead, as part of a tradition of thinking of human rights in terms of sovereign protection, the article makes the case for taking much more seriously the role that the host state can and should have in order to address abuses by international organizations. It emphasises how international legal discourse has tended to ‘give up’ on the host state, but also how host states have themselves been problematically quiescent about violations occurring on their territory. This has forced victims to take the improbable route of seeking to hold the UN accountable directly, bereft of the sort of legal and political mediation which one would normally expect their sovereign to provide. The article contributes some thoughts as to why host states have not taken up their citizens’ cause more forcefully with the United Nations, including governmental weakness, a domestic culture of rights neglect, but also host state dependency on peace operations. The article then suggests some leads to rethink the role of the host state in such circumstances. It points out relevant avenues under international law as well as specifically under international human rights law, drawing on the literature developed to theorise the responsibilities of states in relation to private third-party non-state actors within their jurisdiction. It argues that there is no reason why the arguments developed with private actors, notably corporations, in mind could not be applied to public actors such as the UN. Finally, the article suggests some concrete ways in which the host state could more vigorously take up the cause of rights abuses against international organizations including by requiring the setting up of standing claims commissions or making more use of its consent to peace operations, as well as ways in which it could be forced to do so through domestic law recourses. The article concludes by suggesting that reinstating the host state within what should be its natural prerogatives will not only be a better way of dealing with UN abuses, but also more conducive to the goals of peacekeeping and state construction.
Aiding and Abetting, “Specific Direction” and the Possibility of Negligence Liability for Remote Offenders
Frédéric Mégret and Siena Anstis
Florian Hoffmann and Frédéric Mégret
Pierre-Alexandre Cardinal and Frédéric Mégret
Historiographies of international law have set as a breaking point with the medieval Respublica Christiana the crucial moment of the “discovery” of the Americas. In these historiographies, the defining “Other” of Europe is conceived by the thinkers of the Spanish Salamanca School as the “Indios” of the Americas, whose encounter powerfully contributed to the shaping and extension of international law outside of Europe. It is argued, however, that the thought of the School of Salamanca was based on a prior normative apparatus already contained in late medieval thought. This proto-modern world view was focused on the Muslim Other, as the “enemy in the mirror”. By its proximity, this “Other” unsettled Christendom’s very identity through its difference and rejection of Christianity.
Europe’s encounter with its Muslim Other remains curiously absent from international law’s historiography. This suggests that international law is conspicuously not a history of the relation between Europe and its Muslim Other, and perhaps even based on a tentative erasure of that relation. This chapter will question this accepted historiography and provide a short genealogy of the thought of the School of Salamanca in relation to medieval Europe’s other “other”; “infidels”, “Saracens” and “Moors”. We argue that Christianity’s complex engagements with Islam at its borders constituted a laboratory for international legal concepts, including in their most colonial dimensions.