Authored books by Ka Lok Yip
OUP, 2022
Is it legal to kill, or capture and confine, someone in war? Is this relevant or wise to ask in t... more Is it legal to kill, or capture and confine, someone in war? Is this relevant or wise to ask in the reality of war? What does 'legal' actually mean in the labyrinth of overlapping international laws?
This volume explores the meaning, relevance, and wisdom of questioning the 'legality' of the use of force against individuals in war by reconnecting legal thought with the social world. Weaving together law, social theories, and actual practices, the book presents an interdisciplinary study of the laws regulating warfare.
The Use of Force against Individuals in War under International Law uncovers different conceptions of 'legality' that generate tensions among different international laws regulating warfare and highlights the limits of legal techniques in addressing these tensions. Accepting these tensions serves not to denigrate the law itself but to invite a deeper level of engagement with it - through the lens of social theories.
Drawing on the insight that every social action results from an interaction between human agency and social structures, this publication argues that in regulating warfare, one distinct body of international law, the law of armed conflicts, accommodates the diminished agency of human beings operating in highly structured conditions while other bodies of international law harbour the potential to transform these very structured conditions. Thus, assimilating these laws, whether in court or real-world practices, fundamentally conflates their underlying social ontologies.
Journal articles by Ka Lok Yip
Asian Journal of International Law, 2024
This article reconceptualizes norm conflict in international law by uncovering the experiential d... more This article reconceptualizes norm conflict in international law by uncovering the experiential dimension of its definition and the intentional dimension of its resolution that has been missing from traditional accounts. The article locates the basis of recognizing norm conflict in the experienced sense of incompatibility between norms in view of their contexts rather than in the predesignated constellation of norms with contrary or contradictory functions according to their texts. Concomitantly, it argues that the justification for using certain legal techniques to resolve norm conflicts lies in the intended relationship deducible only between those norms that share the same regulatory purpose rather than between norms merely applying to the same factual situation. This reconceptualization generates a new typology of norm conflicts in light of the norms’ end goals and the means they provide to achieve them: “Ends Conflict”, “Means Conflict”, and “Unexperienced Conflict”, and suggests apposite ways to tackle them.
Open access version: https://www.cambridge.org/core/journals/asian-journal-of-international-law/article/reconceptualizing-norm-conflict-in-international-law/18A3709645B1343D9EBE78652F53E712
Journal on the Use of Force and International Law , 2024
This article argues that a use of force which deprives a self-determination entity (‘SDE') of its... more This article argues that a use of force which deprives a self-determination entity (‘SDE') of its right to self-determination is prohibited under both Article 2(4) of the UN Charter and customary international law, even if there may not be sufficient practice accepted as law (opinio juris) to establish that such forcible deprivation of an SDE's right to self-determination constitutes an armed attack that entitles the SDE to the right of self-defence. The article also argues that a State's use of force to occupy or subjugate an SDE to permanently prevent an armed attack from emanating from that SDE does not qualify as lawful self-defence in the absence of an actual or imminent armed attack. Furthermore, a State's use of force against attacks emanating from an SDE that could have been averted by the State’s relinquishing control over the SDE does not satisfy the necessity requirement to qualify as lawful self-defence.
Jus Cogens – a Critical Journal of Philosophy of Law and Politics, 2023
This reflection examines, through a theoretical lens, two issues concerning equality under intern... more This reflection examines, through a theoretical lens, two issues concerning equality under international law that have emerged from the ongoing Russo-Ukraine War: the equal treatment of belligerents on different sides, which is being contested by some revisionist just war theorists, and the unequal treatment of Ukrainians with different genders assigned at birth trying to flee Ukraine, which is being contested by human rights advocates. By examining different conceptions of equality through the lens of social ontology, this reflection uncovers their different presuppositions about the relative powers and propensities of agency and structures in the social world. It argues that the principle of belligerent equality under international humanitarian law grants equality of treatment to combatants on all sides to an armed conflict because of its presupposition that human individuals act with limited agency in war and cannot be made responsible for the wider structural conditions they are embedded in. On the other hand, the right to equality under international human rights law aims to equalize the structural conditions that shape the agential human beings. The reflection argues that the contestations about these equality principles often find deeper roots in different visions of social reality, the revelation of which can open up common grounds for understanding, dialogue and potential reconciliation among different contestants.
Humanitäres Völkerrecht, 2022
Russia’s full-scale armed attack on Ukraine beginning on 24 February 2022 is simultaneously a pra... more Russia’s full-scale armed attack on Ukraine beginning on 24 February 2022 is simultaneously a practical attack on the international law prohibiting the inter-state use of force. The deepening inhumanity of the ongoing aggression is partly attributable to the constraints on Ukraine and third states to fully exercise their individual and collective right of self-defence to repel Russian forces for fear of Russia’s use of nuclear force against Ukraine or other intervening states that could spark an annihilating nuclear exchange. Yet the Russian President’s address on 24 February 2022 made numerous accusations about the prospects of geographical expansion of the nuclear-armed NATO together with its nuclear military infrastructure. This article examines the legality of both Russia’s and NATO states’ nuclear deterrence postures in verbal, physical and political forms in the context of the war on Ukraine through the lens of the prohibition against the threat of force in international relations and reflects on the important goal furthered by this prohibition: to practice tolerance and live together in peace.
Proceedings of the American Society of International Law Annual Meeting, Mar 24, 2024
Remarks given at the Lieber Society of the Law of Armed Conflict on the award of the Francis Lieb... more Remarks given at the Lieber Society of the Law of Armed Conflict on the award of the Francis Lieber Book Prize to my book ‘The Use of Force against Individuals in War under International Law – a Social Ontological Approach’
Chinese Journal of International Law, 2023
While military alliances have always been an important subject of research in international relat... more While military alliances have always been an important subject of research in international relations, relatively little study has been conducted on them in international law. Even though military alliances have been featured in the wider discussions on regional orders under international law, little systematic effort has been made to assess the extent to which various actions that are routine for or structured into the design and operation of military alliances are compatible with international law. This article aims to fill this gap by examining the implications of certain activities of military alliances under three areas of international law and is divided into three substantive sections. The first section examines how activities such as military exercises, force concentration and coercive demands, when undertaken by a military alliance, could heighten the risk of their violation of the prohibition of the threat of force under the UN Charter. The second section examines how certain standing arrangements of military alliances pre-dispose them to intervene in civil strife in allies or potential allies in potential violation of the norm against intervention in the domestic affairs of another State. The third section examines how, despite their often-explicit deference to the UN Charter, military alliances operate in tension with the collective security architecture of the UN and suggests ways to harmonise them. The article concludes that the sovereign rights of States to form military alliances do not create a carte blanche for military alliances to operate freely from any restraint of international law and calls for a more proactive approach to maintaining international peace and security in view of the complex nature of certain activities of military alliances under international law.
Journal of International Dispute Settlement, 2020
Treaty-based tribunals that render binding decisions on states under international human rights l... more Treaty-based tribunals that render binding decisions on states under international human rights law (IHRL) have long engaged with international humanitarian law (IHL) in their judgements but little attention has been given to the basis of their jurisdiction, if any, to do so. By revisiting fundamental questions on the jurisdictional basis of international tribunals, this article presents a methodological challenge to the uncritical engagement with IHL by certain IHRL tribunals. After surveying the jurisdiction of different IHRL tribunals explicitly founded on treaties, the article seeks not only to justify, but also delimit, the inherent jurisdiction of IHRL tribunals to consider IHL for interpretive purpose, in contrast to directly applying it to the dispute. Finally, the article analyses the substantive and practical implications of stricter observance of the jurisdictional limits of IHRL tribunals on the interpretation of IHRL, the determination of ‘absent’ states’ legal interest...
The Military Law and the Law of War Review, 2020
This article examines the tendencies to define the scope of application of jus ad bellum negative... more This article examines the tendencies to define the scope of application of jus ad bellum negatively in relation to the scope of application of jus in bello and demonstrates their neutralising effect on the prohibition on the use of force under Article 2(4) of the Charter of the United Nations. It argues that individual acts of use of force during an international armed conflict regulated by jus in bello, whether in combat, in restricting the freedom of enemy nationals or in maintaining an occupation, are equally regulated by jus ad bellum. It clarifies the concept of ‘separation’ between jus ad bellum and jus in bello as the insulation between the results of their respective application, not the differentiation between their respective temporal, material and normative scopes of application. It also addresses the practical concerns raised by this conception of ‘separation’ between jus ad bellum and jus in bello.
German Yearbook of International Law, 2018
Philip Allott calls his social idealism a " double idealism " : philosophical idealism that sees ... more Philip Allott calls his social idealism a " double idealism " : philosophical idealism that sees " human reality as a structure of ideas " and moral idealism that enjoins us to change reality " by a revolution in the mind ". This combination of " is and ought " breeds the utopian thinking that " [i]deas can change the world " and " [i]deals can make a better world " which often sidesteps the thorny relationship between human agency and other cultural and structural determinants of social actions. This article focuses on this relationship to demonstrate how its under-analysis could lead to the wild oscillation of expectation on the human, potentially facilitating evasion from sites of genuine human responsibility while encouraging struggles where there is no human freedom. By examining the recent cases of Alexander Blackman in the UK and Elor Azaria in Israel, who killed their wounded, defenseless 'enemy' in war and then had their legal responsibility reduced in similar ways, it shows how the inadequate delimitation of human subjectivity in abstract utopian thinking could be exploited by the culturally and structurally powerful to outright deny human subjectivity, producing concrete dystopia.
Human Rights and International Legal Discourse, 2018
With increasing acceptance of the application of international human rights law (‘IHRL’) in armed... more With increasing acceptance of the application of international human rights law (‘IHRL’) in armed conflicts and occupations, the early focus on ‘jurisdiction’ as a potential limit to applying IHRL extra-territorially has shifted to the relationship between IHRL and international humanitarian law (‘IHL’), leaving the different conceptions of jurisdiction under-theorised and their intimate connection to the relationship between IHL and IHRL under-analysed. This article examines two competing conceptions of jurisdiction, based respectively on factual control and normative legitimacy, to examine what the jurisdictional hurdle under IHRL means for the relationship between IHRL and IHL. It uncovers the different visions of human rights underlying different conceptions of ‘jurisdiction’ under IHRL and examines how they differently shape the relationship between IHRL and IHL. It argues that while control-based jurisdiction is theoretically under-developed, legitimacy-based jurisdiction constricts our vision of human rights and blinds us to the many nonsovereign actors holding structural power over lives in armed conflicts. It further argues that the proposal to partially abandon the jurisdictional threshold harbours a ‘bare life’ vision of human rights that diverts IHRL’s scrutiny away from structural power altogether, sovereign or otherwise. It then proposes a reconceptualisation of ‘jurisdiction’ as structural power to reclaim the ambit of IHRL as demanding the transformation of institutions, sovereign or otherwise, so as to create the necessary structural conditions for the fuller enjoyment of human rights.
Human Rights Law Review, 2017
This article presents a methodological critique of the interpretation, increasingly popular after... more This article presents a methodological critique of the interpretation, increasingly popular after Hassan v UK, that Article 5(1) ECHR allows the internment of prisoners of war or civilians in international armed conflicts according to international humanitarian law because state parties to the ECHR have been conducting such practice without derogation from it. First, the probative value of the non-derogation is discounted by the fact that such practice is not in application of Article 5(1) ECHR. Second, it is difficult to establish interpretive agreement among parties because of the uncertainty of the non-derogating parties’ beliefs, the uncertainty of the other parties’ awareness of those beliefs and the lack of acceptance and confirmation. Third, the probative value of any seeming acquiescence to such practice is undermined by the lack of incentives for states to challenge other states’ practice, the practical obstacles to launching such challenges and the dissent of human rights beneficiaries.
Transnational Legal Theory, 2017
The Interpretive Guidance on the Notion of Direct Participation in Hostilities under Internationa... more The Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law issued by the ICRC in 2008 recommended two interpretive standards on the use of force against individuals in armed conflicts. While one standard defines ‘direct participation in hostilities’ by reference to ‘functional membership’ such that anyone with a continuous combat functions in an organised armed group will lose her/his civilian immunity and be subject to attack on a continuous basis, the other standard requires that the kind and degree of force used in the attack be graduated according to military necessity. This paper surveys the court decisions, military manuals and legal or policy documents in different domestic jurisdictions since the publication of the Interpretive Guidance to illustrate the different levels of the adoption of these standards in domestic legal orders. The paper then borrows Franck’s theory of legitimacy to identify the possible legitimating factors that gave these standards the capacity to induce their adoption by domestic actors. Lastly, the paper employs Habermas’ theory of deliberative democracy in order to examine whether and how the governance by these transnational standards of the people subjected to them may be justified by their democratic legitimacy.
Transnational Dispute Management, 2017
With the One Belt, One Road ('OBOR')'s routes crossing over politically fragile countries, the po... more With the One Belt, One Road ('OBOR')'s routes crossing over politically fragile countries, the potential impact of OBOR investment projects on the rights of the local communities, including indigenous population, might generate a strong adverse reaction towards these projects. This, in turn, could have serious effects, including not only social, political, and financial implications, but also, and, indeed, especially breaches of fundamental rights, environmental harms of sorts, and even human life losses.
We first highlight the importance of local participation in decision-making on foreign investment projects in the context of transnational investment law and arbitration ('TILA'). We then delve into the different sources of international law to scope the right of indigenous peoples, and wider local population, to free, prior and informed consent ('FPIC') in the context of OBOR projects. Finally, we analyse the obligations on the host States and investors in relation to such a right to FPIC, particularly by drawing on recent jurisprudence in TILA.
Book chapters by Ka Lok Yip
The Role of International Human Rights Mechanisms in the Implementation of International Humanitarian Law, 2024
This chapter problematizes the ‘competence’ of international human rights law (“IHRL”) mechanisms... more This chapter problematizes the ‘competence’ of international human rights law (“IHRL”) mechanisms – including both treaty bodies and mechanisms established by the United Nations (“UN”) – over international humanitarian law (“IHL”). I have argued elsewhere that the inherent jurisdiction of IHRL tribunals to consider IHL for interpretive purpose must not be mistaken as the jurisdiction to directly apply IHL to the dispute. Building on that contribution, this chapter examines in turn three building blocks that enable IHRL mechanisms to address situations of armed conflict: the mandates they hold (institutional competence), the norms they draw on (normative competence) and the expertise they possess (technical competence).
The first section will scrutinise the limits to the institutional competence of IHRL mechanisms based on their mandate and demonstrate how certain mechanisms have exceeded these boundaries in their engagement with IHL. The second section will uncover the tendency of certain mechanisms with institutional competence over IHL to focus primarily on that body of norms in their work on situations of armed conflicts, thereby implicitly renouncing their normative competence over IHRL and its capacity to address issues arising from armed conflicts in its own distinct way. The third section will criticize both the suggestion that IHRL mechanisms lack technical competence in IHL and the call for more IHL expertise in these mechanisms.
Global Human Rights at Risk? Challenges, Prospects, and Reforms, 2022
The International Legality of Economic Activities in Occupied Territories, Routledge, 2020
This chapter examines the relationship among jus in bello, jus ad bellum and human rights law gov... more This chapter examines the relationship among jus in bello, jus ad bellum and human rights law governing the extraction of natural resources in territories under belligerent occupation and its operational implications for the extractive industry in both theory and practice.
The laws under jus in bello allow an occupant to seize movable public property in occupied territories for use in military operations and to use immovable public property in occupied territories as administrator and usufructuary. But when these laws are used to establish a licensing system to private businesses to extract natural resources, their boundary with the prohibition against pillage becomes blurred.
Under the strict separation between jus in bello and jus ad bellum, these laws under jus in bello apply regardless of the occupant’s liability under jus ad bellum. Yet some jurists have long questioned the permissibility for an occupant and its licensees to benefit economically from properties (including natural resources) in territories occupied in violation of jus ad bellum, when such permission serves no humanitarian purpose.
This chapter examines these debates through the lens of different branches of international law and argues that certain activities, even if deemed legal under jus in bello, have become prohibited under the growing jurisprudence on socio-economic rights and the right to self-determination and permanent sovereignty over natural resources.
Mats Deland, Mark Klamberg and Pål Wrange (ed.), International Humanitarian Law and Justice: Historical and Sociological Perspectives, Routledge, 2019
This chapter engages in the dialectic among human agency, structure and culture to examine the re... more This chapter engages in the dialectic among human agency, structure and culture to examine the recent debate concerning the strategies for compliance with international humanitarian law (‘IHL’) triggered by the ICRC-commissioned Study on the Roots of Behaviour in War (the ‘RBW Study’). By uncovering the different sociological presuppositions held by the RBW Study and its leading critic, Dale Stephens, it illustrates how the RBW Study’s vision of limited human agency in warfare compelled a structurally oriented approach to inducing IHL compliance while Stephens’ opposite vision of self-reflexive individuals acting in their authentic, moral self-identity catalysed an agentially oriented approach to ensuring restraint in war. It then draws on literature on the psychology of social norms and empirical cases to assess the practical feasibility and principled merits of emphasising human agency at the expense of structural constraints as a strategy to modify behaviour in warfare. Lastly, it explores how de-emphasising the normativity of IHL because of its association with legal positivism and political liberalism, itself underpinned by political individualism, ends up converting to a sociological form of super-individualism that inflates the power of the individuals and deflates the social process that puts some individuals but not others into positions of power.
in Julien Chaisse and Jędrzej Górski (Eds.), The Belt and Road Initiative. Law, Economics, and Politics, Leiden/Boston, BRILL, Nijhoff Classics in International Law series, 2018, pp.523-556
This chapter provides a preview of the legal issues concerning the principle of free, prior and i... more This chapter provides a preview of the legal issues concerning the principle of free, prior and informed consent (‘FPIC’) in the One Belt, One Road (‘OBOR’) initiative in the context of transnational investment law and arbitration (‘TILA’) and is divided into four substantive sections. Section 1 sets the stage for the articulation and operationalization of the right to FPIC and the related right to consultation by highlighting the importance of local participation. Section 2 surveys different sources of international law to scope the right to FPIC. Section 3 analyzes the corresponding obligations of the States hosting OBOR projects. Section 4 analyzes the corresponding obligations of investors investing in OBOR projects.
PhD Thesis by Ka Lok Yip
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Authored books by Ka Lok Yip
This volume explores the meaning, relevance, and wisdom of questioning the 'legality' of the use of force against individuals in war by reconnecting legal thought with the social world. Weaving together law, social theories, and actual practices, the book presents an interdisciplinary study of the laws regulating warfare.
The Use of Force against Individuals in War under International Law uncovers different conceptions of 'legality' that generate tensions among different international laws regulating warfare and highlights the limits of legal techniques in addressing these tensions. Accepting these tensions serves not to denigrate the law itself but to invite a deeper level of engagement with it - through the lens of social theories.
Drawing on the insight that every social action results from an interaction between human agency and social structures, this publication argues that in regulating warfare, one distinct body of international law, the law of armed conflicts, accommodates the diminished agency of human beings operating in highly structured conditions while other bodies of international law harbour the potential to transform these very structured conditions. Thus, assimilating these laws, whether in court or real-world practices, fundamentally conflates their underlying social ontologies.
Journal articles by Ka Lok Yip
Open access version: https://www.cambridge.org/core/journals/asian-journal-of-international-law/article/reconceptualizing-norm-conflict-in-international-law/18A3709645B1343D9EBE78652F53E712
We first highlight the importance of local participation in decision-making on foreign investment projects in the context of transnational investment law and arbitration ('TILA'). We then delve into the different sources of international law to scope the right of indigenous peoples, and wider local population, to free, prior and informed consent ('FPIC') in the context of OBOR projects. Finally, we analyse the obligations on the host States and investors in relation to such a right to FPIC, particularly by drawing on recent jurisprudence in TILA.
Book chapters by Ka Lok Yip
The first section will scrutinise the limits to the institutional competence of IHRL mechanisms based on their mandate and demonstrate how certain mechanisms have exceeded these boundaries in their engagement with IHL. The second section will uncover the tendency of certain mechanisms with institutional competence over IHL to focus primarily on that body of norms in their work on situations of armed conflicts, thereby implicitly renouncing their normative competence over IHRL and its capacity to address issues arising from armed conflicts in its own distinct way. The third section will criticize both the suggestion that IHRL mechanisms lack technical competence in IHL and the call for more IHL expertise in these mechanisms.
The laws under jus in bello allow an occupant to seize movable public property in occupied territories for use in military operations and to use immovable public property in occupied territories as administrator and usufructuary. But when these laws are used to establish a licensing system to private businesses to extract natural resources, their boundary with the prohibition against pillage becomes blurred.
Under the strict separation between jus in bello and jus ad bellum, these laws under jus in bello apply regardless of the occupant’s liability under jus ad bellum. Yet some jurists have long questioned the permissibility for an occupant and its licensees to benefit economically from properties (including natural resources) in territories occupied in violation of jus ad bellum, when such permission serves no humanitarian purpose.
This chapter examines these debates through the lens of different branches of international law and argues that certain activities, even if deemed legal under jus in bello, have become prohibited under the growing jurisprudence on socio-economic rights and the right to self-determination and permanent sovereignty over natural resources.
PhD Thesis by Ka Lok Yip
This volume explores the meaning, relevance, and wisdom of questioning the 'legality' of the use of force against individuals in war by reconnecting legal thought with the social world. Weaving together law, social theories, and actual practices, the book presents an interdisciplinary study of the laws regulating warfare.
The Use of Force against Individuals in War under International Law uncovers different conceptions of 'legality' that generate tensions among different international laws regulating warfare and highlights the limits of legal techniques in addressing these tensions. Accepting these tensions serves not to denigrate the law itself but to invite a deeper level of engagement with it - through the lens of social theories.
Drawing on the insight that every social action results from an interaction between human agency and social structures, this publication argues that in regulating warfare, one distinct body of international law, the law of armed conflicts, accommodates the diminished agency of human beings operating in highly structured conditions while other bodies of international law harbour the potential to transform these very structured conditions. Thus, assimilating these laws, whether in court or real-world practices, fundamentally conflates their underlying social ontologies.
Open access version: https://www.cambridge.org/core/journals/asian-journal-of-international-law/article/reconceptualizing-norm-conflict-in-international-law/18A3709645B1343D9EBE78652F53E712
We first highlight the importance of local participation in decision-making on foreign investment projects in the context of transnational investment law and arbitration ('TILA'). We then delve into the different sources of international law to scope the right of indigenous peoples, and wider local population, to free, prior and informed consent ('FPIC') in the context of OBOR projects. Finally, we analyse the obligations on the host States and investors in relation to such a right to FPIC, particularly by drawing on recent jurisprudence in TILA.
The first section will scrutinise the limits to the institutional competence of IHRL mechanisms based on their mandate and demonstrate how certain mechanisms have exceeded these boundaries in their engagement with IHL. The second section will uncover the tendency of certain mechanisms with institutional competence over IHL to focus primarily on that body of norms in their work on situations of armed conflicts, thereby implicitly renouncing their normative competence over IHRL and its capacity to address issues arising from armed conflicts in its own distinct way. The third section will criticize both the suggestion that IHRL mechanisms lack technical competence in IHL and the call for more IHL expertise in these mechanisms.
The laws under jus in bello allow an occupant to seize movable public property in occupied territories for use in military operations and to use immovable public property in occupied territories as administrator and usufructuary. But when these laws are used to establish a licensing system to private businesses to extract natural resources, their boundary with the prohibition against pillage becomes blurred.
Under the strict separation between jus in bello and jus ad bellum, these laws under jus in bello apply regardless of the occupant’s liability under jus ad bellum. Yet some jurists have long questioned the permissibility for an occupant and its licensees to benefit economically from properties (including natural resources) in territories occupied in violation of jus ad bellum, when such permission serves no humanitarian purpose.
This chapter examines these debates through the lens of different branches of international law and argues that certain activities, even if deemed legal under jus in bello, have become prohibited under the growing jurisprudence on socio-economic rights and the right to self-determination and permanent sovereignty over natural resources.