The research on comparative immigration policy is relatively recent, with the earliest dealing with significant immigrant inflows into Western Europe after World War II. Because of the difficulties in finding empirically grounded measures of immigration policy, the literature has grown primarily by adding to the theoretical literature. In terms of the immigration control literature, nativism (anti-immigrant preferences) has been complemented by approaches that include attention to the economic consequences of immigration, focus on how societal preferences are channeled, and focus on state national interest and state security. In terms of the immigrant integration literature, there has been a tendency to classify the immigrant reception environment of states according to historical nation building features of the state and to types of “immigration regimes.” More recently, in recognition of the static nature of these models of policy making, scholars have disaggregated integration policy into its component parts and incorporated aspects of politics that change over time. The research arena is, in short, theoretically rich, though both dimensions of research on immigration policy suffer from two flaws. The first is the inability to compare effectively policies across countries. The second is the research focus on Western Europe and advanced industrial countries, to the neglect of the remaining countries in the world.
Jana von Stein
If there is no authority higher than the state, why do governments ever abide by the pacts they make with each other? For some, the answer is simple: states only respect agreements that fulfill their immediate interests. Others are more optimistic. Some view compliance as a problem of enforcement, arguing that international inducements, reciprocity, concerns about reputation, and/or domestic politics/institutions regularly help sustain adherence. Others perceive compliance as a problem of capacity, or of poor management. Seen from this angle, mechanisms that “punish” through enforcement typically make matters worse; instead, treaties need to be transparent, as well as providing technical/financial assistance and solid dispute resolution. Still others emphasize the impact of social context, identity, and/or legitimacy. Governments keep their promises because they care how others perceive them, internalize norms, or view agreements as valid and fair. This article provides an overview of these perspectives, with a strong emphasis on recent developments, including findings from recent survey experiments.
One the most dramatic development in international law in the twentieth century is the formation and operation of international criminal tribunals. Unlike conventional international tribunals such as the International Court of Justice and the Permanent Court of Arbitration, international criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Military Tribunal at Nuremberg, are a controversial element of international law and international politics. Precisely because they are aimed at individuals who act “under color of law,” such as military officials or heads of state, they invoke a number of different political challenges and different concerns than do the more conventional international tribunals that adjudicate disputes between states. Their combination of international law, human rights, criminal justice, and hotly disputed facts of great moral gravity makes them a subject of intense debate among academics, government officials, and the public at large. Much of the scholarship on international tribunals can be summed up by three periods: pre-Nuremberg, Nuremberg, and post-Cold War developments. Each of these periods, reveal shifts in the way that international criminal tribunals were studied and conceptualized in the academic world. In the future, much of the scholarship on international tribunals is expected to be influenced by the impact that the actual tribunals themselves have on international politics.
Shirley V. Scott and Orli Zahava
The most fundamental characteristic of a developing state is that its income, usually calculated as gross national product (GNP) per capita, is relatively low in comparison with that of an industrial country. A second characteristic shared by most developing countries is that they are former colonies. In recognition of the diversity amongst developing countries, they are sometimes divided into subgroups. The term “Least Developed Country” is used to refer to some 50 of the most vulnerable states, whose economies are vastly smaller than those of China, India, Brazil, or Mexico. The BRICS (Brazil, Russia, India, China, and South Africa) is a group of states with emerging economies whose share of world trade, investment, and foreign currency reserve is projected to continue to grow. AOSIS, the Alliance of Small Island States, is a 44-member coalition that functions as a negotiating voice for small island developing states (SIDS) within the United Nations system. The engagement of developing countries with international law typically comes in four aspects: the colonial past and contemporary continuities in international legal approaches and categories, attempts by newly independent Third World states to transform international law through the introduction of specific new legal principles, the effect of the increasing gap between the emerging economies of certain developing countries and the most vulnerable developing states, and whether structural impediments remain to the equitable participation of developing countries in international law.
Within the international society, law and diplomacy have always been complementary and interdependent. However, lawyers and diplomats deal with international issues differently, making them rivals to be the primary mode of international interaction. Diplomacy is the art and practice of conducting negotiations between representatives of states; it usually refers to international diplomacy, the conduct of international relations through the mediation of professional diplomats with regard to a full range of topical issues. Nations sometimes resort to international arbitration when faced with a specific question or point of contention in need of resolution. For most of history, there were no official or formal procedures for such proceedings. They were generally accepted to abide by general principles and protocols related to international law and justice. International law 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. Much of international law is consent-based governance. This means that a state member is not obliged to abide by this type of law, unless it has expressly consented to a particular course of conduct, or entered a diplomatic convention. Interdisciplinary courses, like diplomacy and international law, are designed to help one think critically about diplomatic and international legal issues in real-life contexts, while applying theory to practice and addressing some of the key questions facing the world today.
International law defines torture as the intentional infliction of intense suffering aimed at forcing someone to reveal information, punishing unwanted behavior or inspiring fear in a broader population. Since torture is banned under any and all circumstances, states go to great lengths to insist that their conduct does not qualify as torture. Officials seek to distance themselves legally and morally from an association with torture by using clean torture techniques that do not leave physical marks and by downplaying the seriousness of their methods, characterizing their interrogation techniques in euphemistic language that makes it possible to practice torture without admitting that they are doing so. Yet even supposedly lesser forms of abuse referred to as torture “lite” can have severe effects when they are employed in combination and for long periods. Fundamentally, torturous acts are designed to break a victim by demonstrating the victim’s utter powerlessness. Historically, torture was not only common in times of war and social upheaval, but it was also openly practiced in many societies as an integral part of the judicial system. Torture was seen as an effective technique for obtaining information as well as an appropriate punishment for the immoral and a useful deterrent against future misconduct. Since the end of World War II, torture has been rejected as a violation of basic human rights and publicly condemned by most countries in the world; international treaties such as the United Nations Convention Against Torture (CAT) require signatory parties to end torture within their territorial jurisdiction and to criminalize all acts of torture. Nonetheless, countries throughout the world continue to engage in ill-treatment and torture, often during times of national stress, when perceived others or out-group members are subjected to extreme interrogation. Although torture is employed by democratic and nondemocratic forms of government alike, empirical studies reveal that political regimes and institutions have a significant impact on the type of torture used and the duration of government support for torture. Effective democratic institutions like a free press and an independent judiciary make it more likely that cases of torture will be exposed and violators punished, and democratic governments with strong mechanisms for holding officials accountable are more likely to transition away from ill-treatment and torture of detainees, at least once violent challenges end. During periods of perceived threat, however, public intolerance of unwanted others makes it likely that democratic publics will condone if not encourage the use of torture against detained transnational terrorism suspects and other dissidents. Under such circumstances, independent judicial institutions may incentivize officials to practice torture more covertly. Non-democratic countries are more likely to flout human rights treaties such as the CAT, signing such agreements as a means of deflecting criticism but continuing to employ torture against dissidents. Even liberal democracies are found to have difficulty complying with certain international human rights treaty obligations, especially when information about violations—as in the case of torture—tends to be hidden. The resulting impunity makes it difficult to put an end to torture.
Despite an absolute prohibition against torture, countries throughout the world continue to engage in ill-treatment and torture, often during times of national stress, when perceived others or out-group members are subjected to extreme interrogation. This is shown in numerous analyses and documentary evidence of the detention and interrogation policies adopted by the US government after the terrorist attacks of September 11, 2001, including coercive interrogation techniques that many regard as torture, secret detentions, and extraordinary renditions to third countries known to practice torture. Faced with an uncertain and stressful situation, prison guards in Abu Ghraib turned to violence as a way of reassuring themselves that they were in control. With little oversight and a general mandate to secure actionable intelligence, aggression was encouraged and physical and psychological techniques refined in Afghanistan and at the detention center in Guantánamo became standard operating procedures. Though government leaders disavowed the use of torture and claimed that the United States used legally and morally acceptable coercive interrogation methods, US actions prompted a renewed philosophical and political debate whether there should be an absolute prohibition against torture or whether, under carefully specified circumstances, it is a lesser evil to torture a suspect for information to prevent a greater evil that menaces society. Justifications for the limited use of torture focus on its utility in preventing greater harm, especially under ticking bomb scenarios. Arguments for an absolute ban on torture question its effectiveness, citing anecdotal and experimental evidence that coercive methods often produce false confessions. Critics also cite strategic costs, including harm to the US reputation and its counterterrorism efforts, as well as damage to the global norm against torture. Public opinion in the United States and globally is ambivalent, though increasing representations of torture in popular culture have cultivated a torture myth, according to which torture is only used against hardened terrorists and in exceptional circumstances, when time is of the essence and torture is both necessary and effective in forcing terrorists to divulge valuable information that can save lives and avert future attacks. Ultimately, unrealistic depictions of torture and ambivalent signals from political leaders have created a climate of impunity and broad, though deeply divided support for harsh interrogation techniques.
Roberto Domínguez and Rafael Velázquez Flores
The goal of this article is to provide an overview of the literature on global governance, key elements for understanding its conceptualization, and a gateway to capture its multidimensionality. From this perspective, global governance is conceived as a framework of analysis or intellectual device to study the complexity of global processes involving multiple actors that interact at different levels of interest aggregation. The article is divided into four parts. The first section describes the origins, definitions, and characteristics of global governance. The second categorizes global governance based on different thematic areas where there is a confluence of governance practices, on the one hand, and the inclusion of a global level of interaction, on the other. The third discusses the different conceptual inquiries and innovations that have been developed around the term. Finally, the last part maps the different academic institutions that have focused their research on global governance and offer programs on this subject.
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.
Cher Weixia Chen
Indigenous rights have been gaining traction in international law since World War II, as the 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 Universal Declaration of Human Rights (UDHR) in 1948 is the first international document that recognizes the need to protect indigenous groups, though there are also actors and organizations specializing in the field, such as the Working Group on Indigenous Populations (WGIP). However, the majority of the indigenous rights scholarship only examines the policy on indigenous rights, 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.
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.
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.
The internalization of international law is defined as “the process by which nations incorporate international law concepts into domestic practice.” 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.
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.
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.
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.
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.
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 the 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.
Peter J. Jacques
The World Ocean, the interconnected system of oceans and major seas on Earth, is the basis for climate stability, the hydrological cycle, and many aspects of biological diversity. It provides a wide range of benefits, from serving as a principal sink for carbon dioxide, one of the key greenhouse gases driving anthropogenic climate change, to being a source of subsistence, trade, revenue, jobs, cultural meaning, and recreation. However, the World Ocean is vulnerable to human-induced impacts. Indeed, a substantial amount of the World Ocean has experienced major disturbances, especially in fisheries. The key regulation and politics of marine fisheries and pollution can be divided into three distinct phases, corresponding to three eras in the history and politics of the World Ocean: precolonial era, colonial era, and industrial era. These eras are associated with distinct modes of production and use of the ocean: small coastal precolonial artisanal production, colonial expansion under mare liberum or “freedom of the seas,” and the era of contemporary globalization starting with the Law of the Sea. International fisheries regulatory bodies have shown extreme concern regarding overfishing, but not much for larger ecosystem concerns such as climate change. In addition, international fishing regulation has consistently and regularly suffered from the so-called “regulatory overfishing.” In the case of ocean pollution, three important regulatory regimes that emerged at about the same time are the 1972 Oslo Convention, the 1972 London Dumping Convention, and the 1974 Paris Convention.
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.