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Trent J. MacDonald

The modern nation-state is a bundled territorial form of political organisation. The purpose of this book has been to explore variants of the political system almost diametrically opposed to this: unbundled and non-territorial governance. The various models and arguments have drawn on new institutional, public choice, and Austrian economic theory in undertaking these explorations. Particular focus has gone to panarchist and cryptoanarchist political theory (Ludlow 2003; Tucker & de Bellis 2015); the Coase theorem, the theory of fiscal commons and the new institutional economics (Coase 1960; Wagner 1992); institutional possibilities, political transformations and the new comparative economics (Djankov et al. 2003; Rodrik 2014); the theory of fiscal exploitation and internal exit (Buchanan & Faith 1987); and polycentric spontaneous political orders (diZerega 2000; Andersson 2012; Martin & Wagner 2009). All these diverse threads have come together in an analysis of the theory of unbundled and non-territorial governance. The book started with an appreciation of the many paradoxes and problems of majoritarian voting in bundled, territorially monopolistic nationstates, and contended that a more efficient system of governance is one in which citizens relate their political preferences in detailed and filigreed ways. A public choice style framework was used to find that decoupling political jurisdiction from geographical location (so that citizens can switch political jurisdictions without switching location) and unbundling government (so that collective goods and services can be provided separately by independent public enterprises) leads to greater efficiency in public good provision and more citizen welfare. The conclusion to this first chapter was not to rule out all political bundling but rather to promote an ‘unbundleable’ system of governance so that political entrepreneurs could discover ways to rebundle the various political goods and services. Non-territorial unbundling forms a platform for experiments in bundling, unbundling and rebundling, and ultimately fosters discovery of optimal scale of scope in political bundles.

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Trent J. MacDonald

It is no overstatement that James M. Buchanan was one of the most influential economists of the twentieth century. He is also, somewhat curiously, one of the most subversive—laying the theoretical foundations that explain a political dynamic that is only just beginning to unfold, and with the potential to transform governance as we know it. A Nobel laureate for his development of the contractual and constitutional bases for the theory of economic and political decision-making, Buchanan made seminal contributions to several fields within economics and was a major figure in the revival of classical liberal political economy in the late twentieth century. He founded no less than two distinctive schools and research programmes: (1) public choice theory, applying the tools of economic analysis to traditional problems of political science and turning on its head the notion of the benevolent, omniscient government social-planner (‘politics without romance’) (Buchanan & Tullock 1962; Buchanan & Wagner 1977; Buchanan & Tollison 1984); and (2) constitutional economics, the study of the legal–institutional–constitutional rules that constrain the choices and activities of economic and political agents (‘the rules of the game’) (Brennan & Buchanan 1985; Buchanan 1987, 1990).

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Raghav Kohli

With growing international recognition of the widespread scale and sobering consequences of human trafficking, the International Criminal Court (ICC) is the most likely forum for its prosecution in the near future. However, the debate on whether it constitutes a crime within the jurisdiction of the Court remains unresolved. While significant scholarship has been devoted to this issue, it has largely neglected two critical investigative domains. First, the Rome Statute's travaux préparatoires vis-à-vis enslavement, and second, the potential to prosecute trafficking otherwise than under the crime against humanity of enslavement. In this vacuum, this article argues that a strict textualist interpretation of the crime against humanity of enslavement under Article 7(2)(c) of the Statute defeats the Court's goal of ending impunity, by excluding modern forms of slavery from its jurisdiction. It then proposes an innovative argument sourced from the Statute's travaux préparatoires for adopting a broader understanding of enslavement, which is more faithful to the drafter's intentions under the interpretative scheme envisioned in the Vienna Convention on the Law of Treaties. Such a qualified textualist interpretation of the Statute allows for the prosecution of the most serious crimes of international concern, such as trafficking, and preserves the credibility of the ICC as the normative and physical edifice of accountability. In the alternative, it is argued that human trafficking may be prosecuted as an ‘other inhumane act’ under Article 7(1)(k) of the Statute. Thus, the conclusion suggests that the ICC is indeed competent, on more than one ground, to exercise its jurisdiction over the crime of human trafficking.

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Edited by Eirini Kikarea and Maayan Menashe

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Noam Schimmel

This paper asks what are the potential responsibilities to respect, protect, and fulfill international human rights law (IHRL) of a particular class of non-State actors: non-governmental organizations (NGOs). The paper focuses on those NGOs pursuing development in a post-genocide/post-mass-atrocity transitional justice context acting simultaneously in partnership with State governments, as proxies, and providing essential public goods as part of their development remit. It uses post-genocide Rwanda as an example to illustrate how respect and fulfillment of the IHRL pertaining to reparative justice are hindered by failing to hold NGOs responsible for IHRL. This paper defines reparative justice in accordance with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of IHRL and Serious Violations of International Humanitarian Law. These are centered upon five principles: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. I argue that many development NGOs in Rwanda, by not adequately incorporating reparative justice into their development and transitional justice remit and not acknowledging and responding to the distinctive rights and vulnerabilities of genocide survivors, are neglecting IHRL on the right to reparative justice. They have the capacity to prioritize reparative justice in their programming for genocide survivors and in their negotiations with the Rwandan government of how development aid will be disbursed in Rwanda, who will be its recipients, and the prioritization of those facing disadvantage so as not to further marginalize them. I argue, furthermore, that current soft law demands that NGOs should never enter into a contract for provision of development aid with a sovereign that knowingly entails – whether by commission or omission – a violation of IHRL. Though States are ultimately held legally responsible for the acts of NGOs this should not prejudice NGOs being held socially and morally responsible in some capacity and some degree, simultaneously. There is potential for new soft-law moral and social standards regulating NGO behavior to become legal obligations, if they eventually achieve widespread status and practice as customary international law.

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Maria Xiouri

This article examines the Partial Award of 30 June 2016 in the matter of an arbitration between Croatia and Slovenia, which presents particular interest with regard to the topic of termination of a treaty – which in this case was an arbitration agreement – on the grounds of its material breach by a party. It focuses on the issues of: (1) the jurisdiction of the Tribunal to examine the legality of the purported termination of the arbitration agreement; (2) the possibility of termination of an arbitration agreement because of its material breach; (3) the definition of material breach, examining the notion of repudiation of a treaty and the notion of violation of a provision essential to the accomplishment of the object and purpose of the treaty, as well as the question of whether the material character of breach depends on the gravity of the latter; and (4) procedural issues with regard to the termination of a treaty on the grounds of its material breach. The article argues that, in this Partial Award, the Tribunal made some important clarifications with regard to the issue of termination of a treaty on the grounds of its material breach. Moreover, the Tribunal arguably emphasised treaty stability, by adopting a strict interpretation of the definition of material breach according to Article 60 (3)(b) VCLT, which, however, moves away from the letter of this provision to a certain extent.

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Lucas Lixinski

This article discusses a novel mechanism by the Inter-American Court of Human Rights (IACtHR) for promoting systemic change in domestic jurisdictions: joint supervision of compliance with multiple judgments issued against the same State. The article puts this mechanism in comparison to the European Court of Human Rights’ pilot judgments procedure, a more established mechanism with a longer history. In assessing these mechanisms in relation to human rights courts’ legitimacy and impact, the article argues that the IACtHR's mechanism has higher legitimacy costs in relation to the State, but lower vis-à-vis the international human rights community, even if ultimately both mechanisms are first and foremost about addressing court backlogs, and only incidentally about promoting systemic change.

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Louise Mallinder

In many post-conflict societies, political actors battle to ensure the dominancy of their preferred narratives regarding the causes of and responsibilities for past violence. They wage these conflicts about the conflict to instrumentalise narratives of the past to serve their contemporary political aims, but in doing so, they contribute to the endurance of societal divisions which can have destructive effects on the promotion of reconciliation and political stability. Metaconflicts can be particularly heated with respect to the design and implementation of measures to deliver victims’ rights to truth, justice and reparations, as it is through these processes that competing and complex communal narratives of the past are exposed and challenged. This article interrogates how metaconflicts shape political actors’ engagement with or resistance to international legal obligations to investigate and prosecute past violations. The approaches of Northern Ireland's Unionist political parties and Unionist-aligned organisations to the United Kingdom's obligations under the European Convention of Human Rights are used as a case study. Through theoretically informed qualitative analysis of publicly available submissions made by these groups to an official consultation and parliamentary inquiries taking place during 2018, this article identifies four strategies used by Unionists to resist approaches to dealing with the past that they view as contrary to their interests. On this basis, the article argues that these actors understand law as a means to construct and provide official recognition for communally resonant moral and social categories and norms, and that, as such, legal principles such as the equality of the law, non-discrimination and independence within the criminal justice process are viewed as secondary to political concerns. It concludes that reducing the metaconflict's destructive effects requires all parties to recognise the need for political generosity and compromise and to develop more substantive engagement with the principles of universality and equality underpinning international human rights law.

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Brianne McGonigle Leyh and Julie Fraser

The traditional aim of reparations is to place the victim back in the position they would have been in had the harm not occurred. Academics and practitioners have criticised this traditional approach to reparations for serious crimes and human rights violations as failing to address socio-economic disparities and unequal power structures. The recent transformative reparations theories grew out of the belief that it is ineffectual to place marginalised victims back in positions of marginalisation following serious harm. The desire to transform the lives of victims as well as the power structures that sustain unequal relationships is compelling. As a result, this idea has been influential within academic and policy-making circles, and endorsed by the United Nations, the International Criminal Court, and regional and domestic jurisdictions. Despite this, it remains unclear what ‘transformation’ means in theory and in practice. The purpose of this article is to critically examine transformative reparations and explore whether the notion is in fact changing the game or rather more of the same. It questions the utility of the label ‘transformative’ and its suitability in specific contexts. It concludes that outside the international(ised) criminal context, and especially in the national and local context, there may be greater scope for reparations with transformative potential, but only when victims and affected communities play a central role in the decision-making, and when linked with other non-temporary, structural changes. Even under these circumstances, reparation authorities should be cautious of raising false expectations that reparations will be transformative.