Research & publications 2020

This article argues that sanctions are interactional tools; their interactive nature is evident if these measures are considered as a form of stigmatization, which is the outcome of an interaction between the group imposing the stigma and the actor that is stigmatized. Stigmatized states do not always accept the label that is placed upon them and can adopt strategies to counter or resist stigma. From a symbolic interactionalist perspective, this can be understood as a state’s foreign policy role. Such an approach is illustrated through a study of Russia’s response to being sanctioned by the EU and the US for its policies in the Ukrainian crisis. It is argued that Russian leaders are unlikely to cave into Western pressure because they reject the role of deviant that is placed upon their state and instead adopt the role of the ‘untouchable’ state, which is consistent with Russia’s great power identity. Though the sanctions may enable the EU and the US to activate their roles as normative powers, in the context of the Ukrainian crisis, they have locked the parties into roles that contribute to the crisis’ duration.

On April 11, 1994, approximately two thousand men, women, and children were brutally murdered by armed Hutu extremists after a group of Belgian UN peacekeepers abandoned the school facility where they had sought refuge upon the outbreak of the Rwandan genocide. Almost a quarter of a century later, the Brussels Court of Appeal (Court) on June 8, 2018 concluded the civil proceedings lodged by a number of Rwandan survivors and relatives against the Belgian commanding officers and the Belgian state. Overturning an earlier judgment of the Brussels Court of First Instance, the Court held that the decision to retreat from the facility was imputable only to the United Nations, to the exclusion of the Belgian authorities. Accordingly, the claims against the Belgian state were unfounded. The events—which inspired the movie Shooting Dogs (2005)—bear obvious similarities to the role of the United Nations Protection Force's (UNPROFOR) Dutch battalion (Dutchbat) in the evacuation of the Potoçari camp and the ensuing genocide of seven thousand Bosnian men and boys by Bosnian Serb forces in Srebrenica in 1995. Like the Dutch judgments in the (more well-known) Mothers of Srebrenica proceedings, the Mukeshimana appellate judgment provides a rare national court precedent that considers the imputability of the conduct of peacekeepers to troop-contributing countries. The Mukeshimana judgment, however, raises a high bar for finding such imputability.

On 5 and 6 December 2019, the Journal on the Use of Force and International Law (JUFIL) and the Ghent Rolin-Jaequemyns International Law Institute (GRILI) hosted an international conference on ‘military assistance on request’, the doctrine formerly known as ‘intervention by invitation’. Also present at the conference were several members of the refurbished International Law Association (ILA) Committee on the Use of Force, co-chaired by Professors Claus Kreß and Vera Rusinova and intent on fleshing out the many unresolved issues related to this intricate topic.

One leitmotif of the spirited conference proceedings (with resultant papers soon to be published in two special issues of JUFIL) was profound scepticism towards the doctrine of ‘negative equality’, which prescribes that ‘[t]hird States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another State’. Few participants considered the doctrine as a representation of the lex lata, echoing common criticism among legal commentators – including in the blogosphere (see, for example, here, here and here). In a 2018 report, the ILA Committee’s immediate predecessor also seems to have hedged its bets by opining that while ‘consent can allow for the sending of armed forces into a State following the request by its government for assistance in quelling an insurrection … [and] may preclude a violation of the jus ad bellum, it cannot justify violations of the jus in bello or international human rights law’.

It is therefore all the more surprising that the situation in Libya appears to belie this negative trend for ‘negative equality’ as it features a ban on all foreign interference and emphatic support for a Libyan-led, Libyan-owned process to end the conflict – and thereby confirms the doctrine’s main tenets.

Read more here.

Whether one thinks of Syria, Libya, Yemen, or Ukraine, third-State involvement is undeniably a common feature of many – if not most – ongoing non-international armed conflicts. While the direct provision of arms to non-State armed groups is widely deemed contrary to international law, recent years suggest that States feel less reticence to provide so-called “non-lethal assistance” (NLA), understood as material aid not designed to inflict serious bodily harm or death. In particular, in the context of the Syrian civil war, such aid has been provided to various rebel groups, including by the United States as well as by several European countries.

Of these countries, the Netherlands provides a particularly fascinating case study. This is not so much because of the scale of its NLA program, which remained altogether modest with a total cost of around USD 30 million. Rather, the intense dialogue between the executive and legislative branches in the Netherlands offers a unique insight into the type of NLA equipment that was provided, the processes used to vet beneficiaries, and the efforts taken to monitor where provided equipment ended up and how it was used. Parliamentary scrutiny intensified particularly after media reports in 2018 exposed the full extent of the aid program. As part of such scrutiny, the Dutch parliament commissioned a joint report from two expert bodies, the Advisory Committee on Public International Law (CAVV) and the Advisory Council on International Affairs (AIV) on the support of foreign non-State armed groups through ”non-lethal assistance”.

In their joint report (currently in Dutch only) of 25 June 2020, the CAVV and AIV were careful not to retrospectively pass judgment on the Dutch NLA program (for our analysis of the report, see here), but instead adopted a more abstract and forward-looking approach, including by offering criteria to determine the permissibility of future NLA programs. Given the broader relevance for similar government-sanctioned programs elsewhere, this blog post offers a brief commentary of the report’s findings, both on the state of customary law and on the criteria identified. Ultimately, the report leaves (little) room for such programs in the future.

Read more here.

Please find attached all information on the International Order & Justice Lecture Series - vol. 3, including esteemed speakers and their affiliation, the topic and dates of their presentations, and general set up.

To register, contact Ms. Kristien Ballegeer; for more information, contact Prof. Tom Ruys or Dr. Luca Ferro.

Please find attached all informatiopn on the International Order & Justice Lecture Series Specialist Course - vol. 3, including esteemed respondents and their affiliation, the dates of the doctoral seminars, and general set up.

For registration and payment details, contact Ms. Kristien Ballegeer; for more information, contact Prof. Tom Ruys or Dr. Luca Ferro.

Sanctions are presented as a form of international punishment that not only stigmatises the target, but creates a hierarchy between those who impose punishment and those punished. Such practices go against the principle of sovereign equality and contradict the horizontal structure of the international system. Drawing on the literature on stigma management and resentment, this paper argues that when states react to sanctions, they respond not only to the imposition of stigma, but also to the inferior position in which they are placed. Targets may resent the position of authority adopted by the sanctioners. This may in turn motivate them to contest the status quo upon which sanctioners justify their authority, thereby reasserting the norms and corresponding practices they believe should be prioritized.

The US is increasingly weaponizing economic sanctions to push through its
foreign policy agenda. Making use of the centrality of the US in the global
economy, it has imposed ‘secondary sanctions’ on foreign firms, which are
forced to choose between trading with US sanctions targets or forfeiting access to the lucrative US market. In addition, the US has penalized foreign
firms for breaching US sanctions legislation. In this contribution, it is argued
that the international lawfulness of at least some secondary sanctions is
doubtful in light of the customary international law of jurisdiction, as well as
conventional international law (eg, WTO law). The lawfulness of these sanctions could be contested before various domestic and international judicial
mechanisms, although each mechanism comes with its own limitations. To
counter the adverse effects of secondary sanctions, third states and the EU
can also make use of, and have already made use of, various non-judicial
mechanisms, such as blocking statutes, special purpose vehicles to circumvent
the reach of sanctions, or even countermeasures. The effectiveness of such
mechanisms is, however, uncertain.

Lately, the US has increasingly been ‘weaponizing’ economic sanctions to push through a foreign policy agenda. (...) US sanctions do not only govern economic relations between the US and the target state (‘primary sanctions’), but also relations between third states and target states (‘secondary sanctions’). These secondary sanctions do not just aim to coerce targeted states to change political course, but also third states. As secondary sanctions limit third states’ sovereignty to freely conduct their external economic relations with other states, they raise deep legitimacy questions. Third states may consider secondary sanctions to violate the principle of non-intervention, and to be extraterritorial in nature, in violation of constraints imposed by the international law of jurisdiction, in addition to other potential breaches.

In a series of three blogposts we address three issues that are central to the legal debate on secondary sanctions: (1) the permissibility of secondary sanctions in light of the customary international law of state jurisdiction; (2) their permissibility in light of multilateral and bilateral conventions concluded by the targeting and third states; (3) the availability of judicial mechanisms to contest the legality of secondary sanctions.

Beyond national jurisdiction, the deep seabed and its mineral resources are designated as ‘common heritage of mankind’. Nevertheless, the governing legal framework does not only consist of international instruments, as domestic legislation issued by sponsoring states also plays a decisive role. The legitimacy of certain national provisions can be questioned though, taking into account the duty to carry out activities in the Area for the benefit of mankind as a whole. For instance, can a sponsoring state demand that the proposed mining activities are in the public interest of the state? Are they allowed to generate revenue by introducing a recovery fee or other taxes? And should developing states enjoy more leeway, given the particular consideration for their interests and needs in the Law of the Sea Convention? This article analyses to what extent creeping national interests in domestic legislation on deep sea mining are in accordance with international law.

After decades of intense research and significant investments, the deep sea mining industry is gradually preparing to enter the exploitation phase. Nevertheless, a great deal of uncertainty remains and deep sea mining once again finds itself at a crossroads: on the one hand there are contractors who are prepared to invoke a treaty provision to avoid any further delay, while environmental NGOs on the other hand are advocating a moratorium. Against the background of a global pandemic, this article offers a substantiated assessment of these conflicting developments and an analysis of their compatibility with the international legal framework.

Beyond the boundaries of national jurisdiction, the ocean floor and its minerals are governed by a comprehensive international regime, which determines by whom and under what conditions these natural resources can be prospected, explored and exploited. The main principles are set out in the United Nations Convention on the Law of the Sea and the 1994 Implementation Agreement, while more detailed rules are included in specific regulations of the International Seabed Authority (ISA). The ISA has issued rules for the first phases of deep sea mining activities (prospecting and exploration), but has yet to adopt exploitation regulations. A draft version is however being developed and provides a good indication of the current state of play. With regard to transparency and public participation, significant improvements can be identified, but considering the influence of NGOs and their crucial role as watchdogs, the power of third-party stakeholders can still be deemed fairly limited. This article analyzes the existing principles and available options regarding transparency, public participation and access to justice in all phases of deep sea mining activities, identifies the main weaknesses and suggests possible corrections, all the while assessing whether such provisions should be considered a luxury or rather the implementation of an enforceable legal obligation.

Beyond the boundaries of national jurisdiction, the seabed and its mineral resources are governed by a comprehensive international regime, which determines by whom and under what conditions these natural resources can be exploited. Although the fundamental principles of the deep seabed regime are set out in the 1982 Law of the Sea Convention and the 1994 Implementation Agreement, the International Seabed Authority (ISA) also plays a vital role by defining the applicable rules and evaluating incoming applications. In both of these areas, the Legal and Technical Commission (LTC) performs key tasks and guides the law- and decision-making process as an organ of the Council. However, the role, composition and functioning of the LTC has not been spared from criticism. Although the Legal and Technical Commission inherently is an independent organ, consisting of neutral experts who provide legal and scientific advice to prepare and support the decisions and activities of the Council, it has been increasingly politicized over the years. Disproportionate representation of regional groups, shortage of essential expertise and lack of transparency can be considered the main issues and there is a pressing need for a solution. This article offers a critical analysis of these matters and suggests suitable corrections, in order to find a sensible compromise that all parties can agree upon.

Beyond the boundaries of national jurisdiction, the seabed and its mineral resources are governed by a complex international regime, which determines by whom and under what conditions these natural resources can be exploited. However, companies and natural persons wishing to pursue activities in the Area must be sponsored by a state, so national legislation defining the conditions to obtain a certificate of sponsorship also plays an important role. These national laws are very diverse and contain a wide array of provisions, leading to several advantages as well as drawbacks. This article analyzes the crucial building blocks of national deep sea mining legislation and assesses which provisions can serve as an example. Comparisons are made between the relevant laws of carefully selected sponsoring states and this leads us to a patchwork of recommended provisions, which is presented as a first step towards ideal national legislation on deep sea mining.

The international legal framework with regard to ‘the Area’, comprising the deep seabed and the subsoil beyond the boundaries of national jurisdiction, has been modified significantly through the years: it was first established by part XI of the United Nations Convention on the Law of the Sea, but the 1994 Implementation Agreement introduced several changes. These general rules and principles are further developed in the ‘Mining Code’, referring to the comprehensive set of regulations and procedures issued by the International Seabed Authority. The Authority has already produced rules for the first phases of mining activities (prospecting and exploration) in the Area, but has yet to adopt exploitation regulations. Nevertheless, the most recent draft of the exploitation regulations provides a good indication of the current state of play. The aim of this article is to analyze the current draft of the exploitation regulations, which will shape the future deep seabed mining regime, in order to evaluate whether the relevant provisions are sufficient and effective to attain two prominent goals with regard to the Area: the protection of the marine environment and the equitable sharing of financial and economic benefits. The Law of the Sea Convention indeed states that the resources of the deep seabed are considered common heritage of mankind and prioritizes these objectives. Therefore, the exploitation regulations should strike an appropriate balance between commercial exploitation, environmental protection and the interests of developing countries. The strengths and weaknesses of this document and the overarching international legal framework are identified and possible corrections are suggested.

This article deals with legal issues related to the fight against drug trafficking by sea, as performed by the Governments of the United States and the western and southern European coastal States. The article specifically addresses how countries try to exercise jurisdiction outside their territory and how national courts deal with the phenomenon of drug trafficking by sea, particularly about cocaine. The author discusses jurisdictional and other problems associated with the extraterritorial exercising of enforcement jurisdiction over stateless vessels and vessels flying a foreign flag in the exercise of free navigation by coastal States on the high seas or in the Exclusive Economic Zone (EEZ) of another State. The author also considers the many challenges associated with the prosecution of alleged criminals, such as due process or ensuring the right to a fair trial and respect for human rights. This study includes legal texts from forty countries, all related to the fight against illegal drug trafficking and other crimes in the maritime domain. Also, this author has analyzed more than fifty judgments in cases where a coastal State has caught alleged drug traffickers outside the territorial waters (decided by competent courts in the United States, Jamaica, Spain, Italy, the Netherlands, and the United Kingdom, with convictions from 1995 until 2017). The study shows that the illegal trading of large amounts of cocaine by sea complies with all conditions as set under customary international law to be considered an international crime. Moreover, it is argued that every coastal State may exercise jurisdiction over such an offence without having to prove a nexus with the coastal State that is concerned, provided that it is a ‘stateless’ ship or that the relevant flag State explicitly consents to the coastal State applying its laws, and so waives its preferential jurisdiction.

Along with the growing demand for precious metals, the interests of states and commercial entities in the deep seabed have increased. This particular area, however, is subject to a complex international regime and received, together with the mineral resources which are located there, the status of common heritage of mankind. This means, among others, that the deep seabed and its natural resources cannot be appropriated or exploited at one’s own discretion, and it furthermore implies the equitable sharing of the financial and economic benefits which are derived from it. Although the exploitation phase is drawing near, a financial system to achieve this objective has however not been created. While it is true that the 1982 Law of the Sea Convention and the 1994 Implementation Agreement contain the main principles, a specific regime has to be decided upon by the International Seabed Authority. A suitable financial model is sought within the context of the development of the exploitation regulations, but a final consensus on this matter is not yet in sight. This article will explain the most important conditions and current developments, in order to examine whether or not the proposed options are in line with the status of the deep seabed and its natural resources as common heritage of mankind.

Beyond the boundaries of national jurisdiction, the seabed and its mineral resources are governed by a complex international regime, which determines by whom and under what conditions these natural resources can be exploited. However, it must be noted that companies wishing to pursue activities in the Area must be sponsored by a state, so national legislation defining the conditions to obtain a certificate of sponsorship also plays an important role. As will be demonstrated in this article, the content of these national laws is very diverse though, which can create possible mismatches and may induce deep sea mining enterprises to change their sponsoring state. Therefore, the phenomenon of flags of convenience in shipping does not seem far off: depending on the content of the national legislation on deep sea mining and how strictly it is enforced, juridical persons could strategically choose to register their company in a certain state and apply for sponsorship there. In this article, a theoretical analysis of this hypothesis is followed by a comparative evaluation of the national legislation on deep sea mining of two carefully selected states (Belgium and the Cook Islands), in order to determine whether forum shopping within the context of deep sea mining is legally possible and whether widespread differences between national laws can urge deep sea mining companies to go down that road. Furthermore, the consequences of such developments are pondered and possible solutions are suggested.

The heavy fighting in Nagorno-Karabakh that erupted on the morning of Sept. 27 pitted troops of Azerbaijan, supported by Turkey, against the forces of the self-proclaimed “Republic of Artsakh” and Armenian forces. The conflict, which broke out along the line of contact established in the aftermath of the 1988-1994 war over the region, has included the deployment of drones and heavy artillery, with substantial casualties on both sides. Third States (Russia, France, and the United States) have brokered a number of ceasefires, including, most recently, yesterday’s agreement between the governments of Armenia, Azerbaijan, and Russia, which aims to put a lasting end to more than six weeks of hostilities.

In spite of the conflict’s intensity and inter-State dimension, very few States have commented on the compatibility of the protagonists’ conduct with the international law on the use of force (the jus ad bellum). Even the legal blogosphere has remained silent on the matter.

This silence may be due partly to the difficulty in ascertaining the facts on the ground – with both Armenia and Azerbaijan accusing each other of triggering hostilities. Still, the events raise a fundamental question of jus ad bellum – and one that is surprisingly overlooked in legal doctrine.

The question is: when part of a State’s territory is occupied by another State for a prolonged duration, can the former still invoke the right of self-defense to justify military operations aimed at recovering its land? Put differently: can unlawful occupation be regarded as a “continuing” armed attack permitting the recourse to self-defense at any given point in time — possibly years after the occupation commenced?

Read more here.

States of emergency are often declared due to underlying problems of minority group accommodation, and the extraordinary limitation of rights arising from them tends to have a particularly striking effect on such groups. This was true, for instance, with the emergency measures adopted by the British authorities in the context of the ‘Troubles’ in Northern Ireland. The same appears true in respect of the Turkish state of emergency in the aftermath of the failed military coup of 15 July 2016 vis-à-vis the position of Turkey’s Kurds. In spite of the fact that the declaration of the state of emergency constituted a response to an attempted coup which was, allegedly, orchestrated by the Gülen Movement, it is clear that the resulting derogating measures have also targeted ‘other individuals and organizations’, mainly those allegedly connected to the PKK (Kurdistan Workers’ Party), and thus extended to Turkey’s Kurdish periphery. This chapter seeks to map the impact of the Turkish post-coup derogation measures on Turkey’s Kurds and to test them against the non-discrimination principle, minority rights, and the right of self-determination.

Osman Kavala v Turkey is emblematic of many existing and structural problems in Turkey. While each issue deserves close attention in its own right, they are also inextricably intertwined. Each issue is either a result or a cause of one another — factors that cumulatively contributed to the judicial farce and injustice that Kavala faced domestically. The metaphor of Matryoshka dolls comes to mind when looking at the oddities of this particular case and the different layers of human rights challenges underlying it. This piece focuses in on the European Court of Human Right’s substantive findings in the judgment and examines whether the Court has unraveled and revealed what is at the core of this particular Turkish Matryoshka doll. It also explores the newly appointed Turkish Judge Yüksel’s dissenting opinion, which clearly challenges the gist of the majority’s significant findings in the judgment.

Since the 15 July 2016 failed coup, Turkey has seen the mass arrests and detention of hundreds of thousands of individuals; among them are judges and prosecutors, military personnel, police officers, journalists, lawyers, human rights defenders and opposition politicians who have been deprived of their liberty on an array of terrorism-related charges. While this has raised numerous human rights issues, this article focuses on those relating to pre-trial restrictions imposed on the right to liberty and security of individuals during the post-coup state of emergency. Building on the theory and use of the reasonableness concept in the field of pre-trial detention through a particular focus on the ‘reasonable suspicion’ test under Article 5 § 1 (c) of the European Convention on Human Rights (ECHR or the Convention), the article analyses the role of the European Court of Human Rights (the Court or the ECtHR) in enforcing the guarantees of the right to liberty in the Turkish post-coup cases of Mehmet Hasan Altan, Şahin Alpay, Alparslan Altan and Kavala. Against the background of pre-existing Convention standards on pre-trial reasonable suspicion in states of emergency, it finds that the ECtHR has adopted a stronger supervisory stance regarding the compatibility of Turkish post-coup detention practices than the more hesitant approach shown in the prior derogation context of Northern Ireland. While these decisions give some cause for optimism in the hope for a judicial boldness on the part of the ECtHR in condemning Turkey’s arbitrary detention practices during the state of emergency, the article argues that there is further scope for the Court to strengthen its protection in this respect. Notably, despite the positive aspects in the Court’s approach, by continuing to support the notion that the Turkish legal landscape is capable of addressing Article 5 violations and not tackling the underlying structural issues so clearly at play, the Court leaves a glaring gap in rights protection for those seeking justice.

A wise man once said: ‘Just when you think things cannot get any worse, they will.’ The year 2019 was such a dramatic year for Turkey. The agenda was as loaded as ever. In early 2019, the stinging defeat of the ruling Justice and Development Party (AKP) in the municipal elections made international headlines. The main opposition Republican People’s Party (CHP) managed to record a resounding victory by winning mayoral elections in the country’s three largest cities – Istanbul, Ankara, and Izmir. The AKP and the right-wing Nationalist Movement Party (MHP) lodged an extraordinary appeal with the Turkish Supreme Board of Elections seeking the cancellation of the Istanbul polls due to alleged irregularities. In a rather controversial decision, the Turkish electoral board decided to annul and renew the metropolitan election in Istanbul that saw the CHP’s candidate Ekrem Imamoğlu winning the mayoral position. In June 2019, the AKP suffered another blow as Imamoğlu massively increased his majority. In the aftermath of the March 2019 elections, the arrests and arbitrary dismissals of democratically elected mayors affiliated with the Kurdish movement continued apace. Since last year’s elections, more than 30 elected mayors of the pro-Kurdish People’s Democratic Party (HDP) were removed (under the usual terrorism pretext) and replaced with government-appointed trustees. Moreover, Turkey’s military ‘Peace Spring’ operation in Syria also attracted a lot of international attention. Most importantly, the full entry-into-force of Turkey’s new presidential system in July 2018 and its over one-year implementation received the most attention and shaped much of the constitutional agenda of the country in 2019. This chapter first zooms in on the implementation of Turkey’s new presidential system, as it was the most important constitutional development in 2019. It then reports on the cases of the Turkish Constitutional Court (TCC) during that year under three categories, and finally looks ahead to several important issues that will arise next year, including possible vacancies in the TCC and interesting pending cases.

Beyond the boundaries of national jurisdiction, the seabed and its mineral resources are governed by a comprehensive international regime, consisting of the 1982 Law of the Sea Convention, the 1994 Implementation Agreement and detailed rules issued by the International Seabed Authority (ISA), and the exploitation phase is gradually approaching. However, the United States has not ratified the treaties, which gives rise to several issues. Indeed, depending on legal interpretation, this results in the US either being authorized to claim and exploit natural resources within the Area without prior permission of the ISA, or the US being barred from any deep sea mining activities beyond national jurisdiction. Furthermore, with regard to mineral exploitation on the continental shelf, the non-ratification of the treaties concerned also results in a number of legal questions. On the basis of a purposeful discussion of relevant international law and a thorough analysis of the US position towards the deep sea mining provisions of the 1982 Law of the Sea Convention, as adapted by the 1994 Implementation Agreement, as well as its current role within the context of deep sea mining, this article attempts to solve this legal conundrum. Does the US find itself in a privileged position, being able to disregard the international regime and to exploit mineral resources however and wherever they please, or should the US be regarded as the odd man out, excluded from deep sea mining activities until they ratify the relevant treaties?

At the end of the 20th century it seemed the only way was up for the development of international law. The creation of the International Criminal Court, the establishment of the World Trade Organization and the rallying call uttered in global unison against environmental threats in Rio confirmed the importance of international law and the possibilities of global cooperation.

Twenty years into the 21st century however, the credos of ‘effective multilateralism’ and ‘world peace through law’ have increasingly given way to talk of a ‘crisis’ of the international legal order and a ‘backlash’ against international courts and institutions. The ICC faced State party withdrawals, the WTO Appellate Body was brought to its knees by unilateral action and a State party failing the Kyoto Protocol simply walked out on its obligations. On top of that, some States grew the habit of tossing unilateral sanctions at one another in revengeful fits. At first sight then, it looks as if the enthusiasm for the international project, characteristic of the early post-Cold War era has slowly but surely begun to wane.

This chapter takes a closer look at the past events of this century and it concludes that in reality a more nuanced picture has unfolded. The unbridled pursuit of the ‘war on terrorism’ has found its check in human rights, regimes of equitable sharing of natural resources on land and sea are budding, and the clear call of soft law to match global corporations’ muscle with responsibilities can no longer be ignored. The great powers of today may not always sing the same tune, for now, they are still able to perform a harmonious medley from time to time.

Peace is a political construct in the early modern period. War was viewed as a process whereby two sovereign states pursued their rights by violence or artifice. Domestic and international law were intertwined in legal doctrine. Authors of natural law-treatises incorporated an ought-dimension in their writings to describe the framework in which sovereigns should act according to a systematic analysis of a morally established hierarchy. This chapter first provides an elementary overview of sources and historiographical traditions (I). Second, it presents the classical canon of doctrine, from Spanish neo-scholastics (Vitoria) to so-called positivism (Martens), as it developed in relation to the broader intellectual, religious and institutional context as Humanism, Enlightenment, confessionalisation, and the Empire shaped thinking about war and peace (II). Finally, the chapter offers a brief overview of the practical use of legal arguments: treaty collections and repositories of pamphlets were used in political practice in conjunction with classical authors such as Gentili, Grotius or Pufendorf (III).

Between 2015 and 2018, the Dutch government has supported Syrian rebels fighting the regime of President Bashar al-Assad through a ‘non-lethal assistance’ (NLA) program. Pertinent questions have been raised regarding the program’s compatibility with international law and a joint commission was tasked with developing criteria to evaluate the legality and political expediency of future programs. This commentary looks in retrospect at the legality of the NLA program. The substantive analysis is divided into three sections: First, it provides an overview of hard-and-fast facts about the program that have come to light following an admirable amount of journalistic scrutiny and parliamentary debate. Second, it takes a helicopter view of the legal landscape, touching upon the relevant primary norms of international law. Third, it applies that legal framework to the Dutch NLA program, tackling a threefold question: (1) Is the type of assistance legally relevant? (2) Is the type of beneficiary non-State armed group legally relevant? (3) Is the aim or purpose of the assistance programme legally relevant? While the authors recognize that the program was limited in scope and explicitly designed to stay within (or as close as possible to) the parameters of the international legal framework, they nevertheless conclude that it violated the principle of non-intervention, the prohibition on the use of force and the duty to ensure respect for international humanitarian law. Moreover, it may have led to secondary State responsibility for serious breaches of international law committed by the beneficiary armed groups. This conclusion puts in doubt the legality as a matter of lex lata of any such future program, be it lethal or not.