Wouter Werner

Mobilising Uncertainty and the Making of Responsible Sovereigns

The past few decades have witnessed a fundamental change in the perception of threats to the security of states and individuals. Issues of security are no longer primarily framed in terms of threats posed by an identifiable, conventional enemy. Instead, post-Cold War security policies have emphasised the global and radically uncertain nature of threats such as environmental degradation, terrorism and financial risks. What are the implications of this transformation for one of the constitutive principles of international society: state sovereignty? Existing literature has provided two possible answers to this question. The first focuses on the alleged need for states to seek international cooperation and to relax claims of national sovereignty. In Ulrich Becks terminology, this would amount to a transformation of sovereign states into cosmopolitan states. The second takes the opposite position: in response to uncertain threats states rely on their sovereign prerogatives to take exceptional measures and set aside provisions of positive law. In Becks terminology, this would amount to the creation of a surveillance state. None of these two answers, however, does justice to the complex relation between sovereignty, power and (international) law. As this article will show, the invocation of radical uncertainty has led to a transformation in sovereignty that cannot be captured in terms of the cosmopolitan/surveillance dichotomy. What is at stake is a more fundamental transformation of the way in which sovereignty is used to counter threats. Based on a study of the UN Counterterrorism Committee, this article demonstrates how state sovereignty is used as a governmental technology that aims to create proactive, responsible subjects.

The Changing Face of Enmity

The past few decades have witnessed a renewed interest in the work of Carl Schmitt. Scholars from various disciplines have claimed that Schmitt’s critique of universalism, together with his analysis of irregular warfare, provides useful lenses to make sense of the post 9/11 world. In this article, I will critically assess whether Schmitt’s work is indeed useful for understanding the post 9/11 world. To that end, I will concentrate on one of the core arguments put forward by Schmitt: that the laws of armed conflict are unable to regulate irregular warfare, including acts of terrorism. In order to determine the validity of Schmitt’s arguments, I will focus on one of the instruments used in contemporary counter-terrorism policies: the deliberate killing of specific individuals who are regarded as a security threat (‘targeted killing’). Based on an analysis of US and Israeli practice, the article argues that using Schmitt’s work as an analytical tool yields mixed results. While his analysis of irregular warfare remains relevant for contemporary conflicts, his denouncement of universalism blinds us to the transformational potential of international law.

Expertise, uncertainty and international law, a study of the Tallinn manual on cyberwarfare

How should international law deal with the uncertainty arising from the rise of irregular forms of warfare? In the past decade, this question has been the topic of several reports produced by international groups of experts in the field of conflict and security law. The most recent examples include the study on the notion of the ‘direct participation in hostilities’ under the auspices of the International Committee of the Red Cross, and the Tallinn Manual on cyberwarfare prepared at the invitation of NATO. In this article, we discuss the Tallinn Manual, showing how experts faced with uncertainty as to the laws precise scope and meaning construct legal interpretations, legal definitions, and institutional facts and norms that can be used to make sense of a contingent world. At the same time, we argue, this absorption of uncertainty produces new uncertainty. Consequently, the power of experts does not reside in their knowledge, but in their control and management of uncertainty and non-knowledge.

Cosmopolitanism in context: perspectives from international law and political theory

Is it possible and desirable to translate the basic principles underlying cosmopolitanism as a moral standard into effective global institutions. Will the ideals of inclusiveness and equal moral concern for all survive the marriage between cosmopolitanism and institutional power? What are the effects of such bureaucratisation of cosmopolitan ideals? This volume examines the strained relationship between cosmopolitanism as a moral standard and the legal institutions in which cosmopolitan norms and principles are to be implemented. Five areas of global concern are analysed: environmental protection, economic regulation, peace and security, the fight against international crimes and migration.

The Risks of International Law

The past few decades have witnessed a proliferation in the writings on risk and uncertainty. Led by the work of writers such as Beck, Luhmann, Ewald, and Giddens, scholars across the humanities and social sciences have been engaged in reflections on the ways in which our understanding of risk structure informs decision-making and the attribution of responsibility. One of the central topics in this body of literature is the transformation of the concept of risk in postmodern societies.

International Law as a Profession

International law is not merely a set of rules or processes, but is a professional activity practised by a diversity of figures, including scholars, judges, counsel, teachers, legal advisers and activists. Individuals may, in different contexts, play more than one of these roles, and the interactions between them are illuminating of the nature of international law itself. This collection of innovative, multidisciplinary and self-reflective essays reveals a bilateral process whereby, on the one hand, the professionalisation of international law informs discourses about the law, and, on the other hand, discourses about the law inform the professionalisation of the discipline. Intended to promote a dialogue between practice and scholarship, this book is a must-read for all those engaged in the profession of international law.

India and International Law

This is the third issue of the Periphery Series of the Leiden Journal of International Law . The first two were dedicated to the works of the Chilean jurist Alejandro Alvarez and the Nigerian international lawyer Taslim Olawale Elias – two scholars from regions conventionally cast as ‘peripheral’ to the disciplines metropolitan ‘centre’. This issue takes a somewhat different perspective by focusing on a country (or subcontinent) as a whole. Its primary questions concern the way in which Indian scholars have imagined, shaped, and reshaped international law; the manner in which Indias domestic system has received international law; and the ways in which India has been projected by the international legal system.

Editors' Introduction: Alejandro Álvarez and the Launch of the Periphery Series

The articles in this issue of the Leiden Journal of International Law (LJIL), on the life and work of Alejandro Alvarez, comprise the first in a series of occasional special issues planned for the LJIL, each of which will focus on the work of a leading international legal scholar from the ‘periphery’. In launching the Periphery Series, the editorial board of the LJIL had in mind the goal of focusing attention on the role played by centre–periphery dynamics in international law. The centre–periphery formulation of international affairs owes its provenance to political economy, in which context it is primarily associated with dependency theory, Immanuel Wallersteins world systems theory, and more recently, Paul Krugmans model of the geography of trade economics. In part, the Periphery Series invites scholars to confront questions of resource allocation, dependency, and geography highlighted by those bodies of work. In addition, however, this series seeks to foster wider engagement with the discursive function of centre–periphery oppositions in international law, in their many and various iterations.

What's Going On? Reflections on Kratochwil's Concept of Law

This article focuses on two conceptual puzzles that arise out of Kratochwil’s concept of law. The first is the dual meaning of the questions ‘what is the law’ and ‘what is society’? I will argue that a sociological approach to these questions is unable to do justice to the specific position of the legal practitioner, for whom then these questions are first and foremost normative ones with possible far-reaching implications. The second is the relation between the validity and the binding force of law. In line with institutional approaches to law, I argue that legal language cannot be reduced to one form of linguistic practice, the production of binding decisions and norms of conduct. I will show how a broader conception of law as a form of linguistic activity opens up new research agendas in (international) law.

Justice on Screen: A Study on Four Advocacy Documentaries on the ICC

In the past ten years or so, several documentaries on international criminal justice have been produced, shown at film festivals, and used for advocacy and educational purposes. On some occasions, artists, humanitarian organizations, and the Office of the Prosecutor of the International Criminal Court (ICC) have worked closely together in the production of documentary films. Documentaries have thus become important tools for education and the spread of imageries of international criminal justice. So far, however, international legal scholars have largely shied away from researching cinematic representations of their field. In this article, I seek to remedy this by focusing on a family of four recent influential documentaries related to the ICC: The Reckoning , The Court , Prosecutor , and Watchers of the Sky . All four use similar modes of representation, narration and promotion and basically communicate the same message about the Court. My article critically analyzes how such artistic interventions have helped create specific images, stories, and sentiments.