Symposia

Jacob Katz Cogan responds to John H. Knox

[Jacob Katz Cogan, author of The Regulatory Turn in International Law, responds to comments by John H. Knox. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] I would like to thank John Knox for his very thoughtful and quite generous response to my article The Regulatory Turn in International Law. In a number of ways, the article builds on John’s own scholarship – particularly his excellent Horizontal Human Rights Law, 102 American Journal of International Law 1 (2008). So it is particularly appropriate for us to continue the discussion here today. John’s response focuses on private duties in the context of human rights, and he argues that “[h]uman rights law has always been concerned about threats to human rights from non-state actors.” Recent developments, then, are “an intensification of a long-standing characteristic.” I don’t disagree. As John notes, and as discussed the article, “treaties requiring states [for example] to regulate individuals and corporations to suppress slavery, labor abuses, and racial and gender discrimination” predated the late 1980s, which is the date I point to as the beginning of the regulatory turn. And he is correct to conclude that “the challenge of distinguishing between duties that undermine human rights and those that promote them is not new.”

John H. Knox responds to Jacob Katz Cogan

[John H. Knox, Professor of Law, Wake Forest University, responds to Jacob Katz Cogan, The Regulatory Turn in International Law. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] In The Regulatory Turn in International Law, Jacob Katz Cogan takes on a big topic:  the increasing regulation of non-state actors by international law.  Because this development is occurring in so many areas of international law, its full extent can be difficult to grasp.  As the article explains, it is not simply an aggregation of many changes in different fields, but a sea-change in the orientation of the entire international legal system. Even an article that merely identified this “regulatory turn” would be of great importance.  But this article does much more than that.  It provides a historical narrative, it pulls together examples from many different regimes and explains how they constitute common types of regulation, and it analyzes the effects of this development on the international system as a whole.  The result is a seminal work that will influence later scholarship for years to come.

The Regulatory Turn in International Law by Jacob Katz Cogan

[Jacob Katz Cogan, an Associate Professor of Law, University of Cincinnati College of Law and a Visiting Associate Professor of Law, Vanderbilt University Law School, Spring 2011, describes his recently published Article, The Regulatory Turn in International Law. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] In the post-War era, international law became a talisman for the protection of individuals from governmental abuse. Such was the success of this “humanization of international law” that by the 1990s human rights had become “part of . . . international political and legal culture.” This Article argues that there has been an unnoticed contemporary countertrend—the “regulatory turn in international law.” Within the past two decades, states and international organizations have at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal,that impose and enforce direct and indirect international duties upon individuals or that buttress and facilitate a state’s authorities respecting those under and even beyond its territorial jurisdiction. Whereas the human rights turn protected the individual against excessive governmental control, these parallel processes do just the opposite—they facilitate and enhance the regulatory authorities of government (both national and international) in relation to the individual.

A Response to Jean d’Aspremont by Brad Roth

Jean d’Aspremont’s supremely kind comments on my article require little response other than an expression of appreciation. Jean’s knowledge in this field is second to none, and the differences in our perceptions of these topics are minute. But it is, perhaps, worth clarifying my position on the recognition of coup regimes and the question of a democratic entitlement in international...

A Response to Brad Roth by Jean d’Aspremont

[Jean d’Aspremont is Associate Professor of International Law and Senior Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam] Brad Roth’s timely and insightful article entitled ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’ published in the Melbourne Journal of International Law deserves the greatest attention. Twelve years...

Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine

[Brad Roth is an Associate Professor of Political Science and Law at Wayne State University] The effective control doctrine that, in different forms, has governed the recognition of states and governments is unappealing at its core.  Based on the principle of non-interference in civil strife within established international borders, the doctrine’s essential logic is that, with regard to internal efforts to...