A hybrid legal discipline dealing with the relationships between the right to punish and state sovereignty, international criminal law (ICL) overturns classical conceptions of the state, law and justice. Its existence, foundations, scope and effectiveness are determined by the outcome of an attempt – which has proved more or less successful throughout the different phases of its evolution – to reconcile it with the founding principles of the modern state, sovereignty and legality, inherited from the Enlightenment. Adopting a historical perspective helps us its development, on either side of the pivotal moment represented by the creation of the League of Nations: the starting point marked by the 1919 Paris Conference and the immediate aftermath of the First World War; and the turning point marked by the work of the League and international legal doctrine in the interwar era. These two crucial phases saw a string of initiatives which, rather than failures, can be interpreted as a series of necessary transformations for the emergence of a new discipline and, more generally, a profound change in the global legal and judicial order.

This chapter contains four snapshots depicting the state of international legal scholarship at the time of the League of Nations. The first captures the zeitgeist of scholarship during the interwar period and identifies some features that defined this emerging epistemic community. It also considers the extent to which scholars may have had an influence outside academic circles. The second and third snapshots focus on various intertwined debates of the time. In this regard, consideration is given to the debates on the ultimate source of international obligations and the broader discussions about scientific method and the place of ideology in international law. This is done by reference, in particular, to the approaches and/or theories followed by Kelsen, Lauterpacht, (French) legal sociology and jus naturalism. The fourth snapshot elaborates on these debates by focusing on state sovereignty as the vantage point where most doctrinal trends of the time intersect. It identifies liberalism as the ideology underpinning such criticisms and compares them with the views held, first, by controversial German scholar Carl Schmitt and. second, by Soviet legal theorists.

Colonies and mandates, along with protectorates, belong to the wider group of ‘dependent’ territories. Colonies were under the total control of a foreign power which decided all aspects of the administrative, executive and legislative organisation. Public international law was mainly relevant for slavery, forced labour and ‘open-door’ policies. The mandates system was certainly inspired by colonialism, especially in the eyes of contemporaries, for whom colonialism was the ‘white man’s burden’ for the benefit of ‘uncivilised peoples’. However, it also had fundamental structural differences: their purpose – the ‘civilising mission’ – and the triangular relationship (League of Nations, territory, mandate), stand in sharp contrast to the colonial institution. In addition, the mandatory power was not the holder of sovereignty over the mandated territory. The triangular relationship refers particularly to the control that is supposed to embody it. The control exercised by the League marks a notable difference from the colonial system, establishing for the first time in the history of international relations a sophisticated form of indirect international administration of territories.

This chapter deals with questions of sovereignty, territory and jurisdiction during the League of Nations era. It discusses how the concept of sovereignty developed until the League era and how it was understood then. Questions of territory and jurisdiction are closely linked with sovereignty, but, given the immense scope of this topic, it will only be considered as far as it affects the central substance of the chapter. This general exposition of the concept of sovereignty will be followed by an explication how the interwar period saw the emergence of, first, its general principle of horizontal protection of the territorial and jurisdictional aspect of states by international law; second, structured exceptions to this principle qua its vertical limitation of sovereignty through the League system; and third, curious cases where the territorial and jurisdictional powers of states had to be reconciled with other innovative legal principles such as human rights and self-determination. These explications will be illustrated and substantiated by a selection of the relevant cases decided by the Permanent Court of International Justice and other judicial bodies.

The sixteenth and early seventeenth centuries marked a deep crisis of the international political and legal order of Europe, caused by the Reformation, the emergence of some strong composite monarchies and the discovery of the New World. The chapter maps how the law of nations began to emerge as a new paradigm for the governance of Europe under whose wings rulers, diplomats and scholars attempted to advance claims to an exclusive jurisdiction over international relations by sovereign princes and republics. As such, the ‘law of nations’ functioned as a lever, an argument for power in a period of great clashes between centralising governments, opposing confessions, and regional and local elites, rather than representing a reality. The ultimate success by governments in several important states at the end of the Renaissance was facilitated to a great extent by the patrimonial and transactional nature of the states that allowed to include old, autonomous powers in the machinery of state.

By the middle of the seventeenth century, a category of sovereign princes and polities had succeeded in monopolising jurisdiction over external relations and the internal machinery of government that allows to speak of sovereign state. The Old Regime saw the further emergence, in governmental and diplomatic practice as well as in learned writings of the paradigm of the law of nations as the preserve of sovereigns. As legal practice and literature, it also expanded in scope and mass to new regulatory fields such as the law of the sea, maritime warfare, neutrality or dispute settlement. The great treatises on the law of nations of the middle of the eighteenth century fleshed out the dualist system of law of nature and of nations that formed one of the intellectual backbones to Grotius’ work into an elaborate framework of the governance of international relations inside Christian Europe and for its imperial expansion outside.

There are 574 federally recognized tribes. Each has a direct government-to-government relationship with the United States, and each tribe is unique. However, not all legitimate tribes are federally recognized. Which tribes received federal recognition was often a matter of historical accident. To rectify this, the Bureau of Indian Affairs (BIA) created the federal acknowledgment process in 1978. The process was intended to provide an objective and efficient means of identifying “real” tribes, but it has failed. The process often costs millions of dollars, takes decades, and produces unpredictable results. Moreover, the process’ seven mandatory criteria are subjective and often impractical. The Coushatta Tribe of Louisiana and United Houma Nation (UHN) are two examples. The BIA recognized the Coushatta in the 1930s, terminated them in the 1950s, and then re-recognized the tribe in the 1970s. While the Coushatta were deserving of recognition, the recognition was driven by the leadership of Ernest Sickey, the tribe’s inaugural chairman. Sickey strongly supported UHN federal recognition, and the BIA has acknowledged the Houma are Indians. However, the BIA has yet to recognize the UHN as an Indian tribe. Without recognition, the UHN has no sovereignty to protect its traditional lands or people.

What are the elements uniting (or distinguishing) entities that in different jurisdictions and historical periods, have been officially called General Congresses, Constituent Parliaments, Constituent Congresses, National Constituent Assemblies, Constitutional Assemblies, Assemblies of Revision, Parallel Constituent Assembles, or Conventions, but at the same time are generically labelled by political actors and academics as ‘constituent assemblies’? In attempting to answer that question, the objective of this chapter is threefold. First, to describe the main features of the type of institution that can be accurately identified as a constituent assembly. This requires a conception that is broad enough to cover most constitution-making bodies that would be normally labelled as ‘constituent assemblies’, but specific enough as to discriminate against entities that lack certain features. I propose that, while constituent assemblies may be understood in terms of their form or function, it is the nature of their power what distinguishes them from other constitution-drafting mechanisms. My second objective is to enquire into the limits of the power of -a properly understood- constituent assembly. Third, and relatedly, to consider the effects that the attempt to constitutionally regulate such an entity has on its ‘constituent’ nature.

To function as nations, tribes require territorial jurisdiction. That is, tribes must be able to determine the rules governing their lands and apply the rules to all persons on their land. Much of Indian country’s land is held in trust, and trust status is blamed for many of tribes’ economic woes. Trust land should be replaced with tribal property rights regimes. That is, tribes themselves should be free to determine whether they would like to allow private property ownership. In addition to granting tribes greater authority over their land, tribes need jurisdiction over all persons on their land to function as nations. Land status – fee or trust – should be irrelevant to the equation as should Indian status. For example, outside of Indian country, police do not inquire into the citizenship of the parties prior to making an arrest. Though various rationales are offered to justify denying tribes jurisdiction over non-Indians, the reasons do not hold up to scrutiny. Furthermore, tribes’ lack of jurisdiction over non-Indians is indistinguishable from the long-refuted imperial doctrine of extraterritoriality.

Hobbes posed for modernity what we can think of as the puzzle – even the paradox – of sovereignty. The sovereign of a particular polity is the person or body who wields ultimate authority to make law. It follows, he claimed, that the sovereign is legally unlimited. But for Hobbes, any sovereign is legally constituted in that it must comply with what I call the ‘validity mark’ of sovereignty: Legal change must happen in accordance with the criteria of validity. In addition, there is the ‘fundamental legality mark’: To count as an act of sovereign will, a law must be consistent with the laws of nature, in more contemporary terms with the fundamental legal commitments of the legal order. Hobbes’s idea of sovereignty is thus a legal idea, which contrasts with the figure that haunts politics today, the ‘political idea of sovereignty’. I argue that in order to properly oppose the troubling figure of the political sovereign, one needs to have in place not only both marks of sovereignty, but also a political theory of their value. There is a politics to the legal idea of sovereignty.

Territorial jurisdiction will require tribes to further develop their legal systems. People often assume tribal law is exotic, based upon ancient customs. While tribal law often includes customs, many legal systems do. Moreover, tribal law is often indistinguishable from state law. This is not assimilation; rather, this is to be expected. Many laws are universal because people generally want the same basic things. For example, theft and murder are prohibited everywhere. Likewise, tribes banned these offenses long before Europeans arrived on the continent. Though tribal law can deviate from standard Anglo-American law, different does not necessarily mean bad. Additionally, tribal courts usually resemble state and federal courts. Despite negative stereotypes, studies show tribal courts treat non-Indians fairly. Nevertheless, lack of funding – largely due to state taxation – inhibits tribes’ ability to develop bureaucracy. Lack of funding also prevents some tribes from publishing their laws. A possible solution to tribal institutional capacity is the creation of intertribal business courts. The intertribal nature of the tribunal will provide more resources to increase administrative capacity and help eliminate perceptions of bias.

Tribes operated governments since time out of mind. Tribes developed institutions to manage their lands, people, and resources. While European arrival brought many hardships, tribes adapted, but eventually, tribes were forced onto reservations. Tribes endured attempts to exterminate their existence as distinct governments and cultures. Despite fifty years of the federal government’s tribal self-determination policy, tribes remain subject to excessive federal constraints on their sovereignty. Hence, tribes continue to struggle with crime and poverty. Tribes need greater autonomy to address the problems in their communities, and this requires treating tribes as nations again.

When tribes are allowed to operate as governments, states will push back because states fear tribal competition. In particular, states are concerned tribes will offer lower tax rates and other legal incentives to attract businesses to their land. This is a misguided concern. States already craft numerous exceptions to their laws, often designed specifically for their favorite corporations; plus, the source of state power over tribes is lacking. Apart from this, tribal development benefits states. New jobs in Indian country often employ non-Indians who purchase goods and pay taxes off reservation. Thus, tribal sovereignty also serves as a shield against state protectionism and promotes economic opportunities that benefit everyone.

Having secured a seat at the Paris Peace Conference at the end of the First World War, British and Dominion officials pushed for the accession of British colonies to the new League of Nations. Chapter Two probes the legal bases, as well as the political arguments employed to convince United States’ President Woodrow Wilson, why the Dominions and India should be separate member states from Britain at the League. As Britain and the Dominions pushed Wilson for colonial accession to the League, this chapter also examines political pressures, both within the United States, as well as from anti-colonial nationalists from within British colonies, who wanted their own membership of the League, separate from the one proposed by Britain. In doing so, this chapter answers whether colonial membership came about through British imperial design, or through anti-colonial pressures of the ‘Wilsonian Moment’.

‘An anomaly among anomalies!’ exclaimed David Hunter Miller, the United States’ legal representative at the Paris Peace Conference in 1919. For Miller, in the decision to admit the British Empire’s ‘self-governing’ colonies, such as Canada, to the idealistic new organisation to secure world peace, the League of Nations had stretched international norms. What aggravated this already-peculiar situation for Miller was the admission of India, a British colony with few self-governing and representative institutions, no independent foreign policy, and no discernible international personality.

This chapter engages the work of two prominent theorists of agonistic democracy, William Connolly and Chantal Mouffe. It analyzes their critiques of liberal theory and Western political thought, both of which, they argue, divest politics of its essential vitality by prizing consensus, unity, and agreement. Commending agonism for its recovery of the ineliminable place of contestation in democratic politics, as well as its appreciation of the generative and emancipatory possibilities of conflict, the chapter then raises the question of political community. Must agonism’s safeguarding of difference and its preservation of perpetual contestation entail the abandonment of the concept of community? I argue agonists are right to worry about the ways appeals to community threaten difference, but contend nevertheless that a vision of collectivity is necessary for agonistic politics to survive the pressures of neoliberalism. The chapter concludes by considering a movement of radical theology that has adopted some of agonism’s central insights but which, I argue, remains captive to a form of analogical thinking that insufficiently attends to the nature of creaturehood.