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Article

Global Indigenous Rights and Resistance  

Nicholas D. Natividad and Pat Lauderdale

It is estimated that there are more than 470 million Indigenous people spread across 90 countries worldwide, making up more than 6% of the world’s population. Significant advancements in global Indigenous rights have occurred in modern international law since the early 20th century. The establishment of the League of Nations provided an early framework for notions of self-governance, and the establishment of the United Nations in the mid-20th century prompted the rise of Indigenous rights to be situated within the framework of international human rights law. Human rights law emerged from the need expressed in the 1945 UN Charter and the 1948 Universal Declaration of Human Rights to protect and secure the fundamental freedoms and rights of all humans. The first recognition of Indigenous peoples in the international legal order came with the 1957 International Labor Organization (ILO) Convention 107. Since the first recognition, there have been numerous advancements in the establishment of rights for Indigenous populations, most notably the UN Declaration on the Rights of Indigenous Peoples, the International Decades of the World’s Indigenous Peoples, the International Decade of Indigenous Languages, and the International Year for the World’s Indigenous People, as well as in areas of Indigenous cultural heritage and cultural rights. A world-systems approach to Indigenous rights sheds light on contradictory nature of rights, namely, that the rise of human rights has dovetailed with neoliberal globalization under the law. The connection between market fundamentalism and the expansion of human rights has been met with resistance by Indigenous peoples who have provided alternative realities, ways of social organizing, and protection of land and environment that center Indigenous ways of knowing and being. As a result, Indigenous rights have been shaped by the Indigenous peoples teaching the rest of the world the importance of moving away from “individual rights” and toward mutual responsibility and obligation.

Article

Humanitarian Intervention and International Security  

Taylor B. Seybolt

Humanitarian intervention is the use of military intervention in a state to achieve socioeconomic objectives, such as keeping people alive and communities functioning by providing basic necessities, without the approval of its authorities. There are three eras of humanitarian intervention: the entire time up to the end of World War II, the Cold War, and the post-Cold War period. These three eras are distinguished by differences in the structure of the international system. Ultimately, the Western intellectual tradition of just war is the foundation for contemporary international law governing armed conflict. It is grounded in natural law, which recognizes the right of sovereigns to use force to uphold the good of the human community, particularly in cases where unjust injury is inflicted on innocents. Eventually, a diverse body of literature on humanitarian intervention has developed. The contemporary debate focuses on the long-standing disagreement between positive law and natural law about coercive intervention. Political scientists use realist and constructivist paradigms to analyze the motives of intervening states and to argue for or against the practice. Proponents favor humanitarian intervention on the basis of legitimacy and the consequences of nonintervention. Opponents argue against intervention on the basis of illegitimacy, practical constraints, and negative consequences. Meanwhile, skeptics sympathize with the humanitarian impulse to help civilians but are troubled about methods and consequences.

Article

Human Rights in Latin America  

James C. Franklin

The systematic study of human rights came into its own in the 1980s on the heels of expanded efforts by human rights organizations, the U.S. Congress, and the Carter administration to respond to human rights abuses. Latin America was a primary target of these efforts and many of the early studies on human rights focused on this region. Here, an early literature on human rights formed around the practical question of whether U.S. foreign aid allocations were steered away from human rights violators, as the law required. The literature brought some of the first attempts to measure human rights violations systematically, and several of these scholars moved on to broader questions about what caused human rights abuses and on global efforts to stop them. This included analyses of threat perceptions, human rights movements, foreign policy, naming and shaming, and transitional justice. Some of the key theories in this literature were developed, at least in part, by Latin Americanists and a lot of early empirical application of the theories focused on this region. Over time, this literature has become increasingly global, and thus earlier research on Latin America greatly influenced the broader literature on human rights. Alongside the evolution of the scholarly literature, the nature of human rights abuses in Latin America has also changed. After the widespread democratization of the region, abuses shifted from those primarily targeted at political opposition to actions targeted at socially marginalized individuals. This suggests an important new topic for researchers.

Article

Indigenous Rights in International Law  

Cher Weixia Chen

Indigenous rights have been gaining traction in international law since World War II. Indigenous peoples, previously classified under the scope of domestic law, have propelled their cause into the global arena. Indigenous societies are vastly heterogeneous, but they possess some common features, such as lack of statehood, economic and political marginalization, and cultural and racial discrimination. Scholars generally agree that one of the most important goals of the international Indigenous movement is to advance Indigenous rights under international law. Hence, there have since been several international institutions that seek to address Indigenous rights. The majority of the Indigenous rights scholarship focuses on Indigenous rights policies rather than the broader contexts of Indigenous rights or the rise of Indigenous rights as a phenomenon. Therefore, if the ultimate political goal of the Indigenous rights scholarship is to better the conditions of Indigenous peoples, the study of the efficacy of international legal prescription of Indigenous rights is imperative. Otherwise, the considerable efforts put forth by both the academic community and the international Indigenous movement could only remain symbolic.

Article

The Institutions of International Society  

Tonny Brems Knudsen

The “fundamental” or “primary” institutions of international society, among them sovereignty, diplomacy, international law, great power management, the balance of power, trade, and environmental stewardship, have been eagerly discussed and researched in the discipline of international relations (IR), at the theoretical, meta-theoretical, and empirical levels. Generations of scholars associated with not only the English School, but also liberalism and constructivism, have engaged with the “institutions of international society,” as they were originally called by Martin Wight and Hedley Bull in their attempt to develop a historically and sociologically informed theory of international relations. The fact that intense historical, theoretical, and empirical investigations have uncovered new institutional layers, dynamics, and complexities, and thus opened new challenging questions rather than settling the matter is part of its attraction. In the 1960s and 1970s, the early exponents of the English School theorized fundamental institutions as historical pillars of contemporary international society and its element of order. At the turn of the 21st century, this work was picked up by Kal Holsti and Barry Buzan, who initiated a renaissance of English School institutionalism, which specified the institutional levels of international society and discussed possibilities for institutional change. Meanwhile, liberal and constructivist scholars made important contributions on fundamental institutions in key engagements with English School theory on the subject in the late 1980s. These contributions and engagements have informed the most recent wave of (interdisciplinary) scholarship on the subject, which has theorized the room for fundamental institutional change and the role of international organizations in relation to the fundamental institutions of international society.

Article

Intellectual Property Regulation under International Law  

Marlaine White

The creation of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs) in the mid-1990s altered the regulation of intellectual property under international law. Prior to the TRIPs Agreement, intellectual property regulation consisted of a patchwork of international treaties and conventions coordinating reciprocal national treatment of signatory states’ domestic intellectual property protection. Generally, those agreements strove for minimum standards of protection, but left levels and types of protection to member states’ national discretion. TRIPs’s strict uniformity represented a momentous change. Development theorists who have examined the practical implications of intellectual property regulation under international law have echoed critical theorists’ assertions of TRIPs as a watershed moment. However, they have expressed concerns over the domination exercised by developed countries over developing countries within the current international intellectual property regulatory system. Of particular importance are international impositions into developing countries’ national legal systems via TRIPs, and efforts of developed countries to extract from developing countries intellectual property concessions over and above those contained in TRIPs. A wide range of articles on intellectual property regulation under international law have also been published in legal journals and periodicals. Three broad themes stand out: concerns about practice and practical applications (i.e., practice tips, reviews of cases and WTO decisions); concerns about policy aspects and consequences of intellectual property law; and exploration of the philosophical underpinnings of the law.

Article

Intergovernmental Organizations and International Governance of Migration and Ethnic Politics  

Michael Johns

An intergovernmental organization, or international organization (IO), is an organization composed primarily of sovereign states (referred to as member states), or of other intergovernmental organizations. They are important aspects of public international law. IOs are established by a treaty that acts as a charter creating the group, and these treaties are formed when lawful representatives (governments) of several states go through a ratification process, providing the IO with an international legal personality. IOs also take part in issues regarding migration and the prevention of ethnic conflicts. Scholars create a general criterion in defining “politically significant” ethnic groups that can be used to help bring into focus ethnicity in regard to IO involvement. Only the groups that have suffered or benefited from discrimination and have been politically mobilized are included in this criterion. This standard is beneficial when considering IOs as they will only become involved in ethnic group/state relations for groups such as these. Meanwhile, the International Organization for Migration (IOM) is an intergovernmental organization that provides services and advice concerning migration to governments and migrants, including internally displaced persons, refugees, and migrant workers. From its roots as an operational logistics agency, the IOM has widened its scope to become the leading international agency working with governments and civil society to advance the understanding of migration issues, encourage social and economic development through migration, and uphold the human dignity and well-being of migrants.

Article

Internalization of International Law  

Dana Zartner

The internalization of international is the process by which nations incorporate international law domestically. While ratifying an international treaty or accepting a principle of customary international law technically binds a state to follow the rule, it is widely understood that, for international law to be implemented correctly, it must be internalized domestically because actors must have some binding sense of obligation to the law before it becomes viewed as the appropriate standard of behavior. The internalization of international law into domestic law can involve formal international laws, such as the provisions of a treaty or refer to the incorporation of broader international norms, whether or not they are codified in written form. A wide range of cultural and institutional factors can either facilitate or hinder the internalization of international law. Cultural factors include the purpose of law, the origins of the law, and perceptions of appropriate standards of behavior. Institutional factors include whether the state is monist or dualist, the political structure of the various branches of government, and the role and power of the judiciary.

Article

International Environmental Law  

Chenaz B. Seelarbokus

Over the course of the twenty-first century, international environmental cooperation has been spurred through various new international environmental institutions and programs, and a dramatic strengthening of international environmental law-making. With the burst of environmental treaty-making the corpus of international environmental law (IEL) has expanded to include significant international environmental agreements (IEAs) in the sphere of climate change, ozone layer depletion, biodiversity, and so on; as well as the recognition of important principles such as good neighborliness and the common heritage. IEAs function similarly to international treaties—indeed, the only difference between an IEA and other international treaties lies in the subject matter. IEAs function as the instrument for laying down the principles of international laws binding upon states was established by the 1815 Congress of Vienna. Over the years, IEAs have not simply increased in number, but have also undergone an evolution in their structural design. In the early 1930s, IEAs tended to be simple in terms of their requirements, vague in terms of their objectives, and utilitarian in their ethos for protecting the environment. With time, however, as environmental sciences evolved to incorporate new principles and concepts, the structure of IEAs has followed in tandem to incorporate the new understandings and the new concerns.

Article

International Law and Armed Conflict  

Ward Thomas

International law and armed conflict have a rather contentious history together. One the one hand, armed conflict implies and absence of law, and yet, on the other, international law plays an important role in codifying the use of force. The UN Charter’s restrictions on the use of force, drafted in the waning days of a second cataclysmic world war, were intended to radically transform the centuries-old ideology of raison d’état, which viewed war as a sovereign prerogative. More precisely, Article 2(4) of the Charter forbids not just war but force of any kind, or even the threat of it. On its face, the Charter system is a model of simplicity, consisting of a clear prohibition and two exceptions to that prohibition. The apparent simplicity is misleading, however. Article 2(4) is violated so often that experts disagree about whether it should even be considered good law. The Chapter VII enforcement exception is rarely used, and the meaning of self-defense under Article 51 is the subject of contentious disagreement. Moreover, even some UN bodies have supported creating another exception (humanitarian intervention) that coexists uneasily with the organization’s foundational principles. In addition, there is yet another exception (the use of force by national liberation movements) that may be as significant as the others, yet is little discussed by contemporary commentators.

Article

International Law and International Relations  

Robert J. Beck

International Law (IL) is the set of rules generally regarded and accepted as binding in relations between states and between nations. It serves as a framework for the practice of stable and organized international relations (IR). International law differs from state-based legal systems in that it is primarily applicable to countries rather than to private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. The immense body that makes up international law encompasses a piecemeal collection of international customs; agreements; treaties; accords, charters, legal precedents of the International Court of Justice (aka World Court); and more. Without a unique governing, enforcing entity, international law is a largely voluntary endeavor, wherein the power of enforcement only exists when the parties consent to adhere to and abide by an agreement. This is where IR come about; it attempts to explain behavior that occurs across the boundaries of states, the broader relationships of which such behavior is a part, and the institutions (private, state, nongovernmental, and intergovernmental) that oversee those interactions. Explanations can also be found in the relationships between and among the participants, in the intergovernmental arrangements among states, in the activities of multinational corporations, or in the distribution of power and control in the world as a single system.

Article

International Law and the Responsibility to Protect  

B. Welling Hall and Nadira Khudayberdieva

The notion of responsibility to protect (R2P) emerged as a legal challenge to what F. R. Teson called “the moral and legal enclosure of states.” The development of the R2P doctrine coincided with the surge in popularity of the democratic peace thesis, according to which the creation of a security community rests not on the existence of a common enemy, but on the “positive shared foundation of democracy and cooperation.” The R2P doctrine was developed by international lawyers in response to the failure of the international community to prevent or react effectively enough to the commission of genocide, war crimes, crimes against humanity, and ethnic cleansing in Rwanda, Bosnia, Haiti, and elsewhere during the last decade of the 20th century and the first of the 21st century. Some scholars of international law argue that R2P reconceptualizes sovereignty as a legal construct and expands the international toolkit for the peaceful prevention of deadly conflict. The International Commission on Intervention and State Sovereignty (ICISS) report, The Responsibility to Protect, lays emphasis on military intervention as a key component of R2P. Others, however, claim that R2P simply provides new, legal justifications for the use of force. International law scholarship on R2P is overwhelmingly dedicated to the question of when and how R2P might be invoked to support military intervention (jus ad bellum) and the relationship between R2P and international criminal tribunals (jus post bellum). One area that deserves attention from scholars is a “law instead of war,” or jus non bello.

Article

International Law and World Order: Theoretical Perspectives  

Dennis R. Schmidt

Debates about the nature and role of international law have preoccupied international relations (IR) scholars since the inception of the discipline. They involve some of the most fundamental questions about the theory and practice of world order: to what extent is IR a rule-based activity? How do rules and institutions emerge and function under conditions of anarchy and power competition? What effects, if any, does law have on the behavior, interests, and identities of global actors? One way of developing and organizing answers to these questions is through theoretical investigation. Each of the discipline’s main theoretical approaches makes arguments about the role of law in the construction and maintenance of the processes and patterns that constitute political order at the global level. Structural realists such as Kenneth Waltz largely dismissed international law as an epiphenomenon to power politics and security competition. Rational institutional literature emerging in the 1980s developed a more nuanced picture, highlighting law’s role in fostering order and cooperation among sovereign states. Contemporary constructivist approaches go one step further and acknowledge law’s centrality for understanding patterns and processes of social ordering, while critical scholarship, including Third World approaches to international law, focuses on revealing and challenging the structures that underpin the formation and operation of law in a stratified global order marked by legacies of colonialism and economic and political inequalities. Some of those theoretical claims are related to and derived from historical analysis, and there now is a recognizable, interdisciplinary move among historians, IR scholars, political theorists, and international lawyers to engage with the role of law in the historical evolution of world order.

Article

International Law Developed Through the European Union  

Kathie Barrett

The European Union (EU) was created through treaties and thus is a product of international law. In the Van Gend en Loos decision, the European Court of Justice (CJEU) stated that the EU was a “new order of international law” and reiterated this in subsequent decisions. This perspective is consistent with the way that the EU influences international law to drive integration as well as its foreign policy goals to become a global leader in the rule of law, protection of human rights, and environmental stability while at the same time decreasing the sovereignty of Member States without their agreement. The CJEU is adjudicating a supranational constitution and empowering national courts to ensure the consistency of EU law. The EU has demonstrated that a unique international system can be driven through cooperation and confidence in international law. While creating possibilities for both international and the EU, it also creates challenges for the national court as well as EU and international law development.

Article

International Law, Technology, and Gender-Based Violence  

Carlotta Rigotti

Although information and communication technologies (ICTs) and artificial intelligence (AI) offer a unique opportunity to help personal autonomy flourish and promote diversity in society, their deployment has increasingly proved to channel new harm. Generally speaking, online and technology-facilitated violence comes to mean any abusive act that is committed, facilitated, or amplified via ICTs and other AI-based technologies. Also, it appears that this abuse is gender-based and intersectional, is experienced as a continuum of offline violence, and negatively affects the individual, as well as society. Accordingly, because online and technology-facilitated violence is borderless, and the same rights that people have offline must likewise be respected online, the international community has started undertaking some joint action. This is the case, for example, of the Platform of Independent Expert Mechanisms on the Elimination of Discrimination and Violence Against Women, as well as the European Commission and the United Nations Entity for Gender Equality and the Empowerment of Women. At the same time, a growing body of diverse literature suggests several courses of action for the international response to online and technology-facilitated violence against women. More precisely, greater effort is considered to be necessary to fill the terminological and data gaps that counteract the effectiveness of legal, policy, and other measures addressing online and technology-facilitated violence against women. Furthermore, numerous scholars make concrete and/or original suggestions that could facilitate the prevention and support of victims of online and technology-facilitated violence, such as the engagement of pop feminism in social media campaigns and the adoption of bystander intervention models. In terms of legal reform, there is common agreement that it should keep up with the continuous development of technology and the personal experiences of the victims, while going beyond the mere criminalization of the wrongdoings. Special emphasis is also put on the necessary regulation and engagement with internet platforms, to strengthen the legal and policy responses, as well as to hold them accountable.

Article

International Order in Theory and Practice  

Kyle M. Lascurettes and Michael Poznansky

International relations scholars of all stripes have long been interested in the idea of “international order.” At the most general level, international order entails some level of regularity, predictability, and stability in the ways that actors interact with one another. At a level of higher specificity, however, international orders can vary along a number of dimensions (or fault lines). This includes whether order is thin or thick, premised on position or principles, regional or global in scope, and issue specific or multi-issue in nature. When it comes to how orders emerge, the majority of existing explanations can be categorized according to two criteria and corresponding set of questions. First, are orders produced by a single actor or a select subset of actors that are privileged and powerful, or are they created by many actors that are roughly equal and undifferentiated in capabilities and status? Second, do orders come about from the purposive behavior of particular actors, or are they the aggregated result of many behaviors and interactions that produce an outcome that no single actor anticipated? The resulting typology yields four ideal types of order explanations: hegemonic (order is intentional, and power is concentrated), centralized (order is spontaneous, but power is concentrated), negotiated (order is intentional, but power is dispersed), and decentralized (order is spontaneous, and power is dispersed). Finally, it is useful to think about the process by which order can transform or break down as a phenomenon that is at least sometimes distinct from how orders emerge in the first place. The main criterion in this respect is the rapidity with which orders transform or break down. More specifically, they can change or fall apart quickly through revolutionary processes or more gradually through evolutionary ones.

Article

International Organizations and Respect for International Law  

Kendall W. Stiles

International organizations (IOs) have effectively modified the structure of international law. For more than six decades, IOs have echoed the aspirations of humankind, in pursuit of the ideal of realization of justice, and have furthermore contributed to that end. IOs are provided with privileges and immunities that are intended to ensure their independent and effective functioning. These are specified in the treaties that give rise to the organization, which are normally supplemented by further multinational agreements and national regulations under international law. Rather than by national jurisdiction, legal accountability is intended to be ensured by legal mechanisms that are internal to the IO itself and by access to administrative tribunals. In the course of many court cases, where private parties tried to pursue claims against IOs, there has been a gradual realization that alternate means of dispute settlement are required, as states have fundamental human rights obligations to provide plaintiffs with access to court in view of their right to a fair trial. Otherwise, the organizations’ immunities may be put in question in national and international courts.

Article

International Regime Complexity  

Laura Gómez-Mera

A regime complex is an array of overlapping international institutions and agreements that interact to govern in a particular issue area of international relations. International regime complexity refers to the international political dynamics that emerge from the interaction among multiple overlapping institutions within regime complexes. Scholars have identified several factors explaining the emergence of regime complexes and the growing regime complexity in world politics. Some have emphasized the functional rationale for creating institutional linkages to contain negative spillovers across regimes. Others have focused instead on actors’ incentives, pointing to the various expected benefits of governing through regime complexes rather than through separate comprehensive institutions. Scholars have also disagreed about the consequences of regime complexes and, in particular, about the extent to which regime complexity facilitates or hinders international cooperation. The early literature tended to emphasize how institutional proliferation and fragmentation contributed to regulatory conflicts, thus undermining global governance outcomes. By contrast, other works provide a more nuanced account of the effects of regime overlaps, showing that under certain conditions regime complexity contributes to the effectiveness of cooperation. A rich body of empirical evidence drawn from the study of regime complexes in several issue areas, including environmental, trade, security, migration, and public health governance, suggests that what matters is not the fragmentation and overlaps per se but how they are managed. The increasing institutional density and overlaps in international politics in the 21st century has generated significant interest among scholars of international relations (IR). The literature on international regime complexity and regime complexes has evolved theoretically and empirically since the beginning of the 12st century. Three main questions have guided and informed theoretical debates and empirical research on regime complexes. First, what are regime complexes and how are they composed? What is meant by international regime complexity? Second, what causes regime complexity and how do regime complexes emerge? And third, what are the effects and consequences of regime complexity?

Article

International Regulation of Ocean Pollution and Ocean Fisheries  

Peter Jacques

The World Ocean, the interconnected system of oceans and major seas on Earth, faces a major governance failure that has produced a series of catastrophic systemic changes to the marine food web and the water column across all scales. As each era passes, ocean sustainability has become less of a priority compared to economic extraction, though there were many institutions forged in the post-War period, and these are explained, concluding with the development of a purposefully weak effort to protect biodiversity in Areas Beyond National Jurisdictions. Fisheries are systematically mismanaged, and there are now serious concerns for large-scale, even global, fishery collapses. Longstanding pollution issues like oil pollution have improved, but a new class of “invisibles”—carbon dioxide, heat, nitrogen, and plastics—offer growing threats. The solution to these problems must be integrated, comprehensive, and ambitious—something the Areas Beyond National Jurisdiction language does not promise.

Article

The Law of Genocide  

Robert Weiner

Genocide is described as the most extreme form of crime against humanity; Winston Churchill even called it the “crime with no name.” The word “genocide” was coined by Raphael Lemkin, a Polish lawyer who embarked on a mission to persuade the international community to accept genocide as an international crime under international law. In 1946, the first session of the United Nations General Assembly adopted a resolution declaring genocide as a crime under international law. This resolution became the basis for the Convention on the Prevention and Punishment of the Crime of Genocide, introduced in 1948. However, it would take another fifty years before the Genocide Convention would establish an International Criminal Court that would prosecute international war criminals. In the 1990s, special ad hoc tribunals were created for Yugoslavia and Rwanda to deal with international crimes such as genocide, crimes against humanity, and war crimes. In reaction to the failure of the international community to deal with genocide in Rwanda, a great deal of emphasis has been placed on the norm of “the Responsibility to Protect.” The Genocide Convention was tested in the case brought by Bosnia and Herzegovina against Serbia (originally Serbia and Montenegro) in 1993. It was the first time in history that a sovereign state was placed on trial for the commission of genocide. The implications and ramifications of the International Court of Justice’s ruling that the Serbian government did not commit genocide in Bosnia became a subject of considerable debate among legal scholars.