 Good morning, everyone. It is a real pleasure to welcome you to the second day. Can everyone hear me? Yes, OK, good. The mic is on. To welcome you to the second day of Daniel's conference of the Cambridge International World Journal. And this is a particular pleasure because it brings fond memories from seven years ago when we organized the first annual conference and by we, I mean the Cambridge PhD law students. And I have to say I'm very impressed by how much progress has been made in these seven years, starting from the conference facts to the organization, to the fact that we're being videoed, and also by the fact that you thought of inviting people to present the keynote speakers and chair panels, which is something we hadn't thought of seven years ago, so we had to do it all by ourselves. So without further ado, it is a real honor to present to you a colleague and a friend, Professor Jorge Vinoales, who doesn't really need presentations, so I'm going to make it very brief. So Professor Vinoales is the chair of law and environmental policy here at the University of Cambridge, and he is the founder of the Cambridge Center for Environment, Energy, and Natural Resource Governance. In addition to being an academic, Professor Vinoales is also very actively engaged in practice. He is the chairman of the compliance committee of the UNWHO Protocol on Water and Health. He is the director general of the Latin American Society of International Law, and he also acts as of counsel for the leave. I don't have enough time to go through all of Professor Vinoales' publications, so I'll just highlight that he has published extensively in the areas of environmental law and development, international economic and investment law, and most recently, he is working on a book on the international law of energy. So I pass the floor on to Jorge, who has one hour, and I will be timing you. OK, that's good. Thanks very much, Rumi, and let me just pick my phone so I have a, oh yeah, it's fine. I use it, the usual one. I have a two-minute sense, so don't worry. That's good. So thank you very much, Rumi, for this kind of presentation. It's really a pleasure to be here, and actually, I'm often here in this place giving lectures, but it's a pleasure to be here in this capacity. And I would like to thank also Patrick and Cara for the kind invitation. So given the fact that this is the second day that we have a wonderful dinner and good wine yesterday, I will be speaking in a more informal way if you don't mind. The point of my presentation can be, hopefully, explained in simple terms by making a detour. And this detour, hopefully, is not going to delay the presentation, but take us right to the core of it. And the detour starts with my own collection of international law books. Actually, each time that I'm traveling, I'm traveling quite a lot. When I have time, I go on to a sort of old antique bookshop and try to find books, old books, old textbooks of international law. And I have a collection in my office, and you'll see what a boring guy. But I do have that collection. And one thing that is striking in the books in the late 19th century, and I have a specific example in mind, is this example is called Principios de Direto Internacional that I bought in Tomar in Portugal a few years ago. It's a book of 1865 by Antonio de Rosa Gama Lowe, the professor at the Military Academy. And one thing that is striking about these books is that they are all divided in the law of war and the law of peace. And most of the developments are devoted to the laws of war. Of course, one from today, one could criticize that, saying, well, what a weird distinction, the laws of war and the laws of peace. Today, most international law is about the laws of peace. And we no longer call it the laws of peace, we just call it international law. But that would be an anachronism, right? I mean, we would not be fair to the people writing at the time if it were to try to find in those books international environmental law or international economic law. I mean, what you would find there, well, perhaps you'll find some developments on the most favored nation clause, but basically the laws of peace are treaties and consular and diplomatic relations. So this suma divisio between the laws of war and the laws of peace made sense at the time because of the very important place occupied by war in international law. I can give you another example of suma divisio that will sound a little bit artificial, but that has another historical explanation. You may have heard about the laws of the non-navigational uses of international watercourses. That's a very peculiar way of structuring a subject, looking at water and seeing navigational and non-navigational instead of seeing navigation used for energy, used for agriculture, used for human vital needs, et cetera, et cetera. It's a strange division, but again, it is explained by the fact that historically, watercourses were used for navigation. So when they started to talk about other things, other uses of watercourses, they just called them non-navigational uses. And that's how the topic entered into the international locomissions agenda and then into a treaty of 1997. At this point, I guess that you already have in mind what I'm trying to get to, which is a fact that we're talking about state factors and non-state factors. And what does that mean? Well, that means basically that, I guess, two things. First, that in our conception today, international law is really about states predominantly. And that we feel, even when we're trying to study other phenomena, we feel that non-state factors can be all conflated into one single category, a sort of default category, with everything else. You have states, and then you have everything else. And that everything else can go from a people trying for self-determination to an individual fighting for his or her human rights, to a corporation investing in some country, to the ICRC trying to defend people in a conflict situation, and so on. So it is to international organizations, to the UN, for instance. So it is really a, excuse me, my traveling has taken a toll on me. So it is quite peculiar, although we don't see it as peculiar, because we are used to it. Now, in time, I think that it's going to be seen as peculiar, as we now see as peculiar the fact that the writers in the late 19th century and even some current books, such as Oppenheim's Treaties on International Law, are still divided in peace and war. Now, using that suma di visio, basically using the suma di visio between states and non-states is not entirely innocuous. It's not, it comes at a price. And what I would like to see is basically, I would like to try to clarify what that price is and try to see what is behind that suma di visio. I would like to clarify when we speak about international law and non-state actors, what type of inquiries we are conducting, what type of research frames we have in mind. And my proposition for today is going to be that we have two types of inquiries in mind, one which is very much affected by the sort of gravity pool of states and the other that hopefully is not and will not be affected by it. So in other terms, I'm trying to flag and hopefully start to correct what could be called not an anachronism. So you know that an anachronism is when you plug into the past present categories to understand realities of the past. That may be useful, but at some point, the categories of the present that you plug into the past, that you project into the past, at some point instead of clarifying the past, start to obscure the past. They are making violence to the past. The same thing, I would say, happens with broad categories such as suma di visio, such as states and non-states. And I would like to show ways in which we are projecting that sort of conception of international law, which is state-centered, and to what extent our research on non-state actors is, in fact, at, I would say, 80%, it is basically framed in state terms. So what are those two sort of areas of inquiry that arise from this suma di visio? Well, the first, which is the one that we are, most of us are practicing and we are applying, is basically an exploration and analysis, an examination of the extent to which certain norms that were designed for states can be either applied to non-states by extension or can be used to develop new norms for non-states by analogy. And I will give you plenty of examples. Excuse me, I'm not a change of temperature from my Argentina trip. I just came back from Argentina one day ago. So the second category that I will be looking at, so I presented two categories and then I will discuss each of them by reference with a number of examples. The second category is basically one that tries to avoid the anachronism that is not projecting the law of states into non-states, but that is actually looking at non-states without preconceptions shaped by the law of states. It's looking at entities and trying to see how the operation of those entities generates normativity. And why that may be useful. So I will give you also many examples. And you will see, hopefully, that the examples are not just new examples, they are old and new. You have many, very old, many classic examples of both inquiries. So let me get into the first inquiry, which is the projection of the law of states into non-states. This is, I would say, most of what people do these days. When people talk about and study and explore and write about non-state actors, 80% of the time, what they are doing is actually to project the law of states into non-states. How can that be projected? Well, I give you some classical examples and then I will give you some newer examples, so more current policy issues. But the classical examples may start with the famous reparations advisory opinion that Olivier the Scooter actually referred to yesterday. It is a very well-known case. Basically, you have the General Assembly of the United Nations requesting an advisory opinion to the ICJ because of what happened to an envoy of the UN in Israel, actually a person, a count Bernadotte, that was murdered by an extremist group. And the UN actually is asking a few questions to the General Assembly, and the General Assembly will provide an advisory opinion that's going to provide, at the same time, the groundwork for the theory of international organization from a legal perspective, so the subjectivity of international organization. And already in that advisory opinion of 1949, you see the two techniques through which the law of states is being projected into non-states. One technique is by extension, is to apply norms that usually are applied to states to non-states. And the other is by analogy, is to actually look at norms that are developed for states and to create a similar and analogous category for non-states. So in this case, the extension is provided by the question of legal personality. To what extent the UN has a legal personality and the ICJ will say that not every subject of international law has the same scope and that some subjects have the full scope, some of the subjects have a narrower scope defined by the principle of specialty, whereas the extension, sort of, this is the extension, sort of technique of projecting, whereas the analogy technique of projecting is given by the concept of functional protection. So the court will say at that time, international organizations cannot exercise diplomatic protection for one of their agents, but they can exercise something which is akin to diplomatic protection, which is called functional protection, whereas diplomatic protection has to be exercised by the state of nationality. These two techniques, projection by extension and projection by analogy are very common. And still keeping with the classical examples of how these techniques have been used for non-state actors, let me give you a few more examples. I will give you just as a matter of symmetry two examples for extension and two examples for analogy. I will try to pick major examples, not just tiny ones. Now one example, let's look at extension first. On extension, a typical example is the sovereignty of peoples. So the permanent sovereignty over natural resources that was recognized in Resolution 1803 in 1962 as a sort of addendum to the law of decolonization to provide economic independence. Now that concept of peoples sovereignty over the natural resources is of course an extension of the concept of territorial sovereignty or of the state's sovereignty over its natural resources. And who else but states could be sovereign? And the reason why peoples are deemed sovereign in that case is that they are about to become states. Okay, so this is a way in which, I mean I could push the example further, but this is a classical example of extension, of the extension technique to a non-state actor, peoples. Another example of the extension technique is something that I think is going to be discussed further today, I was discussed to some extent yesterday, which is basically the application of international humanitarian law using bellow to armed groups. I mean, to make it less controversial I would say, to organized armed groups on the basis of the Martins' Clause, comma, article three of the Geneva Conventions and of protocol two of protocol two to the Geneva Conventions for non-international armed conflict. So it is without question that to some extent international humanitarian law applies to non-state actors, to armed groups, treat below and customize below. But that is again another sort of classical extension. This is the law that has been developed for states and it's being simply applied by extension to non-state, okay? Let me give you now two examples. We're always in the sort of range of examples that are classical, two examples of analogy and I will go quicker here because it is very, very well known. As you know, the International Law Commission has done a lot of work on the law of treaties concluded by international organizations or between international organizations and states and there is even a Vienna Convention of 1986 that is not enforced, that looks at the specific rules governing the law of treaties that are not between states, but between states and international organizations or between international organizations. If you look at the work of the International Law Commission and at the Vienna Convention, it is not copy pasted but closed. So it is very, very, very close. I mean, it was the eminent Paul Reuter who did that work for the International Law Commission so it's not criticism. The main difference is basically a treaty-making powers which international organizations have struck the difference. And the same and the second example is is a law of the responsibility of international organizations. So the responsibility of international organizations, the draft articles that were developed by George Ogaya by the International Law Commission in 2011, they rely very heavily on the ILC articles on state responsibility. I would say that these articles are, they differ more, I mean, relatively speaking, they are a bit more innovative. If you look at part five of those articles, which basically concerns the responsibility of a state for an act attributable to an international organization. So that part five is much more specific and you will not find it in the ILC articles. But all the rest is fairly close to the ILC articles on state responsibility. You will even find all the same circumstances precluding wrongfulness. So it's quite, so you see that here you're not extending. You're not applying the law of treaties between states or the law of state responsibility to international organizations. What you're doing is to use it and extend it by analogy. So you're just, so this is a typical way of projecting these are the sort of the classical cases, the classical examples. There are closer to us some newer examples that are a bit more controversial. I would just flag four of them in passing just to give you a flavor. And what I'm trying to do here is just to show you how pervasive, how widespread is this idea of projection, okay? Of projecting the law of states into non-states. So first example, well, to take up the example that I was mentioning earlier and something that Olivier was discussing yesterday as well, which is human rights obligations of certain non-state actors, particularly corporations or some armed groups, particularly non-organized armed groups. So here you have a little bit more controversy. There is nothing preventing from them. I mean, legally there is nothing preventing a non-state actor from having an obligation, think of war crimes, for instance. And a non-state actor such as an individual may have the obligation not to commit a war crime. So legally, there is nothing illegal technique that would prevent a non-state actor from having an obligation, but this is a typical question that is much debated these days. Another example would be the extent to which states can exercise self-defense against a non-state actor. That was discussed yesterday about my presentation and that was addressed to some extent and actually excluded to some extent by the National Court of Justice in the World Advisory Board of 2004. So, but this is an open question. I mean, it's a debated question. I mean, my personal view is that it's not possible that the rule of self-defense will not apply against a non-state actor. So you will need some form of attribution of the armed attack to the non-state actor to a state where it is the non-state actor is based. But it's a debate, it's a typical projection, projection of the law of states into non-states. Third example, to what extent a group, I wouldn't say a people because this is more complicated, but to what extent a group can violate the principle of territorial integrity. So you may remember the Kosovo Advisory Opinion where the court actually, I don't want to be too controversial here, but I think that the reasoning in that advisory opinion is very weak or it is very smart to avoid answering the question. So it is perhaps not weak because it's weak, but simply there was no other way to reach the conclusion they didn't want to reach. So to avoid the conclusion they didn't want to reach. And basically what the court is saying is there is no violation of territorial integrity because a state is not acting and the UN is not acting. So this assembly is a private actor. What it is exactly, not sure, is it the people not sure I'm not saying that's not the question, what is it? Well, it's a group of people. And as a group of people you cannot violate the principle of territorial integrity. So you see the, again, the thinking is in terms of the law of states and the projection into the law of non-states. And a final example, closer to the area that I teach here in Cambridge, is the environmental standards. To what extent these environmental standards can apply to non-state actors such as, not just corporations. I mean international environmental norms. I mean not just domestic law, but international environmental norms to what extent they govern the activities of either an investor or perhaps the activities of the World Bank or the International Finance Corporation or the Green Climate Fund or any funder, any regional development bank that actually is lending money to someone who is perhaps by developing a project violating a number of environmental standards. And the answer to that of course will be that they have their own operational guidelines. So what they would be potentially violating is the operational guidelines. But when you look at the sources of the content of the operational guidelines, it's always the real declaration of 1982. So you see that both old and new, I would argue that 80% of what we're doing when we're discussing the situation of non-state actors is to look at the law of states and projected into non-states by either analogizing or extending the application of the law of states into non-states. That's entirely fine, that's entirely fine as long as we know that we are committing a sort of anachronism, not an anachronism but that we are projecting a category that was developed for states into non-states. So in many cases, that projection by the very fact that the initial category was developed for states, that projection will not find a correspondence in reality. It will obscure reality rather than clarifying reality. And that is something that sometimes we need to do for a very simple reason that most of the international law has been developed for states. So if we are really to apply international law, we are supposed to be looking at international law as it is. So it's normal that we do that type of inquiry. What is not normal is that we do that type of inquiry without knowing what we're doing. And it's very important to know that what we're doing is to project state categories into non-state entities. And by doing that, we are making violence to non-state entities. We are not recognizing their specific features. We are not looking at them as they are. We are looking at them as if they were to what extent they could be treated as states. Now, the second area of inquiry is of course less frequent. I mean, just to give you a rough, very rough and not quantitative, not quantitatively studied estimation, I would say that the projection type of work occupies between 80 and 90% of research, basically. So if you look, if you want to go into the non-projection work, basically those types of words that do look at non-state actors, not as non-state actors, but as entities, without calling them, without seeing them as non-state actors, but just as entities on their own right, on their own specificity. So that type of research is 10%. And I would say that even less because most of it is political science related. So without real legal content. And it is very interesting because you sort of find some form of normativity there, some form of patterns of governance, but the political science literature is not engaging or not engaging properly with the law. And this is something that every international lawyer should know how to do. And unfortunately these days, I think that there is a trend towards a sort of abandoning international law as if something uninteresting, too technical, too boring, too doctrinal. It is entirely fine to do whatever type of interdisciplinary research you want to do. I do a lot of that. But you are the only ones who will master the technology. If you surrender the technology, if you're not comfortable with the technology of international law, then no one else will. An economist will not do that. A physicist will not do that. Political science will not be able to do that. So that type of research should add the dimension of law as well, I think. And I will give you a few examples of areas where that type of research is being conducted. One is going to be very simple. And again, I mean, I'm trying to give classic examples and new examples, but let me give you a very classic example. So one area of research where this sort of non-projective approach is being conducted is when you actually, when your purpose, your research purpose is precisely not to be distracted, not to be misled by the state screen, okay? And a very classical example of that is international criminal law. There are no crimes of state, okay? There are norms that can be violated. There may be an aggravated responsibility, but there are technically no crimes of state. So the development of international criminal law was by opposition, by contrast with the state screen. It is the opposite to projection. It's a classical example. It is a classical example, but it is typically, is taking into account the specificities of the conduct of war, for instance, and the fact that it is a person who is adopting or making a decision. It is a Kaiser. It is the future. It is a dictator that is actually taking the decision. And that was the approach that was developed starting with the Treaty of Versailles in 1920. In the closer to us category, I would give you one example that is very, very exploratory, which is basically the law of transnational city cooperation. There is a lot of discussion these days about what type of law is being made by cooperation among cities, particularly in connection with climate change. And a typical example would be how do you structure from an international legal perspective the linking under Article 6, I think, of the Paris Agreement between the cap and trite system of California and Quebec? Is that an international treaty? Well, of course not, because California cannot conclude an international treaty. To what extent that is an agreement? To what extent that is international law? Well, in fact, you're going, I mean, there are legal instruments that are used for that, but this is really there. You're trying to move away from the state screen and trying to look at the entities as they are and their activities and operations as they manifest themselves. So you're trying to conduct a sort of phenomenology of the law, of the legal phenomenon. This is one area where you really want to avoid to be distracted by the state screen or by the state projective categories. The second area is when you want to capture certain phenomena of normativity that are not easily captured by the sort of projection from states. I give you one example. There is a world between hard laws of law, a world. There are so many things between hard laws of law and if we project these categories of hard laws of law, which are based on the idea of consent of the state. So they are based on the idea of projection. If we actually disregard this idea of consent, we are in a way, we get rid of it to some extent and look phenomenologically at the different forms of normativity, you will capture many other forms of normativity and I will give you one which is a major form that these days, just one example, or it's actually one category of examples, which is what my colleague, Jos Pauly has called informal lawmaking. It is what many other people have talked about that, but it's really an issue of, you have the ISO, you have the International Bar Association, you have plenty of private institutions making standards that have a lot of influence in practice. I just think for those practicing arbitration, the IBA guidelines on the taking of evidence that are applied systematically. Or if you want something even more peculiar, the red firm schedules that they're used for document production requests. So this kind of thing that arise from nowhere, basically, from nowhere in terms of law and that have a huge influence, they will not be able to be, you will not be able to capture their operation by thinking in terms of hard laws of law or by projecting this idea of state consent, absence of state consent. Third and last example of ways in which one can take into account the specificity of an entity without projecting the law of state is when you actually want to deconstruct the law of state. And then I will give you an example from a younger colleague, which is I guess probably one of the most brilliant PhD thesis that I haven't seen in my career, which is Mabadou Javier's thesis, Souvranete Par-treté, which won the, was awarded the Guggenheim Prize. And it's basically a historical study for five centuries in seven languages of all the agreements that were conducted by colonial powers with local entities. And it's basically showing that what most of the people who write about the history of international law and even the international court of justice when, for instance, in the Western Sahara advisory opinion, it is interpreting the legal nature of this agreement are basically wrong. So what you're trying to, what Mabadou is trying to deconstruct is the fact that these agreements were actually seen by both parties, the local entity and the colonial power as treaties. Even though the writers of the time would not accept the idea that there were treaties, and even though the fact, even though that the International Court of Justice would say, well, these treaties cannot come for Souvranete because these local entities cannot have Souvranete. The only effect of these local entities is to have ties with the territory that make that territory not a resnuluse, but it doesn't mean that they had Souvranete. So they couldn't come for Souvranete. What Mabadou is actually showing through this very detailed study is that basically that's incorrect. That's incorrect. If you really want to take into account the practice of five centuries, not what people were saying in their treatise of international law, what colonial powers and local entities were doing, if you really pay attention to that, and it's a lot of work to pay attention to that, well, you will see that the law was very different from the normative accounts of the law that you would find in books. The approach that you have there is to really take into account the specificity of those local entities instead of plug into them, instead of committing a clear anachronism in that case, is to plug into them the idea of a state and say, well, a state is this, where they states at the time, no, they were not states, so they could not come for Souvranete. So what Mabadou is saying is okay, that idea is wrong because at the time the law was different. The fact that they were not states didn't mean that they were not recognized by states as being able to come for Souvranete by treaty. So you see that there are many ways in which you can sort of give back to reality its own features to actually characterize it in a way that instead of obscuring reality, you clarify reality. So there are ways to get closer to the topography of what we're calling very broadly non-state actors and by doing that, you can actually sometimes do very important work because of course, I mean, for instance, the work by Mabadou would completely change a number of the result of a number of territorial disputes as little as that. So my point here again is not to say that it is wrong or it is ambiguous or it is inaccurate to project the categories of the law of states into non-states. This is mostly what we do. I do that same as well. I mean, we all do these things for a very simple reason. Most of international law is state centered and by that, I don't mean that it's providing powers to states and so on. It's simply that it was developed with the state in mind. The state is a white elephant in the room. So it is only natural that we're actually paying attention to that law and projecting it into non-states, this sort of default category. But it is very, very, very important when we're doing that to keep in mind that to some extent we are projecting into reality, into a reality that is not a state, categories that were built for a different reality. And in some cases that may not be a problem, for instance, the law of treaties between international organizations, you can almost copy-paste a convention of treaties and it's not a big issue. In some other cases, such as the case that I just gave you about the entity and the powers of local entities in the colonization period, that is a huge problem. So you really have to know, the main point is know what you're doing when you're doing it. So that's what I wanted to share with you. Perhaps this conference can actually serve, I understand that you're going to publish a journal issue. Perhaps that this conference can serve to actually clarify that these types of inquiries are very different and that this is not a merely theoretical point, that actually it can have very practical implications. As Rumi was saying, I'm a professor but I'm a practitioner as well. I'm much more a professor than a practitioner. I left practice, a full-time practice years ago. But I do believe that theory should have some purchase on reality. And if it does not have any purchase on reality, we should be doing something else. Thank you very much for your attention.