The publications listed here represent a small selection of the work of staff members of the GCILS. To see full listings of publications please click through to the University of Glasgow main webpages in each individual staff member profile.

Human Rights, Poverty and Capitalism

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“In this chapter, I examine the interplay between state obligations to eradicate extreme poverty and realize socio-economic rights under International Human Rights Law (IHRL) and some of the legal regimes and economic paradigms that sustain global capitalism. Advocates of rights-based solutions to poverty tend to focus on how mechanisms to advance relevant categories of human rights, above all socio-economic rights, can be strengthened. Their analyses typically ignore questions of how other legal rights and legal regimes may function as obstacles to the eradication of poverty and the realization of human rights. I contest the long-standing assumption of IHRL that the goal of realizing human rights—and socio-economic rights in particular—is compatible with the operations of global capitalism, and I seek to demonstrate that the legal regimes necessary to sustain capitalist political economy are, in fact, routinely productive of poverty and of violations of socio-economic rights.”

GCILS Working Papers

Global Constitutionalism and the International Criminal Court: A Relational View

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“International criminal law (ICL) poses distinctive challenges to the scholarly agenda of global constitutionalism. Descriptively, ICL qua criminal law implies a distinctive institutional process – the trial – that is largely unknown to constitutional processes. It is nonetheless via the trial and its assigned functions that global authority is exercised in the international criminal realm. Can global constitutionalism account for the role of the international criminal trial? Further, international criminal tribunals employ particularly coercive tools to perform its functions: it arrests suspected offenders (with the assistance of states), interrogates them, judges them, may convict and ultimately imprison them. Can global constitutionalism normatively account for this coercive aspect?.”

GCILS Working Papers

(Un)constitutional Change Rooted in Peace Agreements

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Peace agreements aiming to end intra-state armed conflicts have often provided for radical constitutional change, with more than 100 peace agreements concluded since 1989 containing provisions on constitutional reform. When such constitutional change is envisaged to take place within the framework of an existing constitution, as opposed to the making of a new constitution, hard-achieved deals between peace-making parties are exposed to ‘the unconstitutionality challenge’. Although there is ample literature on the making of a new constitution during transitions from conflict to peace, implementing a peace agreement within an existing constitutional framework and ‘the unconstitutionality challenge’ to peace reforms have not been fully examined to date. In this Article, we first identify the modalities in which ‘the unconstitutionality challenge’ is directed at constitutional change rooted in peace agreements. We do so through a comparative survey and by particular reference to peace processes in Colombia (with the FARC-EP) and the Philippines (regarding the Mindanao conflict). We then examine the promise and limitations of three legal strategies in addressing the unconstitutionality challenge: (i) recourse to international law in assessing unconstitutionality, (ii) transitionalism in judicial review, and (iii) attributing supra-constitutional or international legal status to peace agreements. We conclude that while each strategy has some merit, their effectiveness may be limited where they lack legal feasibility or political purchase. The resulting intractability of the unconstitutionality challenge, particularly in jurisdictions where there is a strong commitment to legalism, warrants a re-thinking of the link between peace-making and constitutional reform and the importance of taking existing constitutional frameworks in transitional countries seriously.

International Journal of Constitutional Law, 2020, Vol 18(4)

Tarik Olcay

Human Rights Unbound. A Theory of Extraterritoriality

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This book explores to what extent a state owes human rights obligations to individuals outside of its territory, when the conduct of that state impacts upon the lives of those individuals. It draws upon legal and political philosophy to develop a theory of extraterritoriality based on the nature of human rights, merging accounts of economic, social, and cultural rights with those of civil and political rights Lea Raible outlines four main arguments aimed at changing the way we think about the extraterritoriality of human rights. First, she argues that questions regarding extraterritoriality are really about justifying the allocation of human rights obligations to specific states. Second, the book shows that human rights as found in international human rights treaties are underpinned by the values of integrity and equality. Third, she shows that these same values justify the allocation of human rights obligations towards specific individuals to public institutions - including states - that hold political power over those individuals. And finally, the book demonstrates that title to territory is best captured by the value of stability, as opposed to integrity and equality. On this basis, Raible concludes that all standards in international human rights treaties that count as human rights require that a threshold of jurisdiction, understood as political power over individuals, is met. The book applies this theory of extraterritoriality to explain the obligations of states in a wide range of cases.

Oxford University Press; 11 June 2020 (estimated); available for pre-order

9780198863373

Prosecutorial Discretion at the International Criminal Court

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This timely book provides a comprehensive guide to, and rigorous analysis of, prosecutorial discretion at the International Criminal Court. This is the first ever study that takes the reader through all the key stages of the Proscecutor's decision-making process. Starting from preliminary examinations and the decision to investigate, the book also explores case selection processes, plea agreements, culminating in the question of how to end engagement in specific country situations. The book serves as a guide to the Rome Statute through the lens of the Prosecutor's activities. With its unique combination of legal theory and specific policy analysis, it addresses broader questions that will be relevant to other international and hybrid criminal courts and tribunals. The book will be of interest to students, practitioners of law, academics, and the wider public concerned with international law, criminal justice and international relations.

Hart Publishing; 25 June 2020 (estimated); available for pre-order;

9781509928705

Negotiating Civil War: the Politics of International Regime Design

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Civil war has been a fact of political life throughout recorded history. However, unlike inter-state wars, international law has not traditionally regulated such conflicts. How then can we explain the post-1945 emergence and evolution of international treaty rules regulating the conduct of internal armed conflict: the 'Civil War Regime'? Negotiating Civil War combines insights derived from Realist, Rationalist, Liberal, and Constructivist approaches to International Relations to answer this question, revisiting the negotiation of the 1949 Geneva Conventions, the 1977 Additional Protocols, and the 1998 Rome Statute of the International Criminal Court. This study provides a rigorous, critical account of the making of the Civil War Regime. Sophisticated and persuasive, it illustrates the complex interplay of material, ideational, social, and strategic factors in shaping these rules with important lessons for the making and unmaking of international law in a rapidly shifting international political, economic, and security environment.

Forthcoming, online 2020; in print 2021.

Online 9781108667302