Article 38 of the Statute of the International Court of Justice lists “international custom, as evidence of a general practice accepted as law” as the second source of law to be used by the Court. In other words, customary international law (CIL) requires state practice and opinio juris, the belief that the practice is legally required. A basic principle of international law is that sovereign states must consent to be bound by international legal requirements. Therefore, for a norm to become CIL, a widespread group of states must consistently follow the norm and indicate, either explicitly or implicitly, that they consent to the norm. Consistent action is important in two ways: consistent state practice following the norm indicates state consent to be bound by the norm and consistent objection to the norm indicates that the state does not consent to the norm. To avoid being bound by a rule of CIL, a state must persistently object to the rule during and after its formation. Changing CIL requires new state practice and evidence that opinio juris supports the new, not the old, state practice. Debates surrounding state practice include the number of states required to demonstrate “widespread” action, whether the states must be representative of the community of states, and how long consistent practice must occur before CIL is formed. Opinio juris is debated because it is subjective unless there is a specific, official statement that there is a belief that the practice is legally required.
Once a state consents, implicitly or explicitly, to a CIL rule, it cannot withdraw that consent. States that gain independence after a CIL rule is established are bound by that rule if the former government was not a persistent objector. This is problematic, particularly for former colonies that were not able to object during the formation of existing CIL rules because they were not considered “sovereign states.” Scholars supporting this perspective argue that, prior to decolonization, CIL was used to control the colonies and, since their independence, it is used by the colonizers to maintain their power and perpetuate inequality.
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Customary International Law
Kathleen Barrett
Article
State Responsibility in International Politics
Daniel Warner
State responsibility can be examined from the moral, legal, and political perspectives. Historically, state responsibility was the subject of extensive work by the International Law Commission, which was carried out over 40 years (1956–2001). While the Commission’s work was terminated in 2001 with no binding conventions or treaties resulting from it, many of its final articles have become references in international and domestic tribunals. However, the Commission was unable to establish obligatory arbitration between states, to agree on penalties for international crimes, or to establish any formal legal structure with which to oversee legal state responsibility.
Differences between domestic jurisdiction and international jurisdiction limit definitive, formal legal state responsibility. The United Nations, the International Court of Justice (ICJ), and the International Criminal Court (ICC) all deal with state responsibility, but all reflect, to different extents the role of international politics in state responsibility. The permanent members of the UN Security Council have veto power. All United Nations member states are members of the ICJ. However, only 74 of them recognize the compulsory jurisdiction of the ICJ and the ICC tries individuals, not states.
The use of “illegal but legitimate” to justify military intervention in the Balkans was an example of how states creatively avoid following the legal limits of their responsibility. The decision of the ICJ in the Nicaragua v. United States case also showed the importance of the role of politics in a judicial process and the difficulties of defining the limits of a state’s responsibilities.
The very question of state responsibility in international politics reflects the importance of states and interstate international politics. States are the primary subjects of international law. However, issues such as climate change and the environment go beyond mere state responsibility and push the boundaries of the statist paradigm to larger global responsibilities erga omnes as well as actors above and below the state levels.
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Treaty Law: New Trends
Bruce Cronin
Treaties are agreements between sovereign states, and occasionally between states and international organizations. Treaties can include conventions, covenants, charters, and statutes, all of which are legally binding under international law. There are two main types of treaties: bilateral and multilateral. Bilateral agreements are concluded by a limited number of states (usually two), and typically address a narrow set of issues that are unique to specific parties and particular circumstances. Multilateral treaties, on the other hand, establish generalized principles of conduct that apply to a wide range of states without regard to the future particularistic interests of the parties or the strategic exigencies that may exist in a particular occurrence. Treaties can serve a wide variety of functions: ending wars and establishing conditions for peace; creating new international organizations or alliances; generating new rules of coexistence and cooperation; regulating a particular type of behavior; distributing resources; and initiating new rights and obligations for future relations. No single organization or agency has the authority to enforce treaty commitment. Rather, treaties can be enforced in at least two ways. First, states can use diplomatic, economic, and/or military coercion. Second, some treaties establish their own enforcement mechanisms; for example Chapter VII of the United Nations Charter grants enforcement authority to the Security Council.
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Criminal Tribunals
Aaron Fichtelberg
One the most dramatic development in international law in the 20th century was the formation 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 political challenges. 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 period reveals 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.
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War, Conflict, and Human Rights
Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman
The relationship between human rights and armed conflict is rooted in historical debates among religious, philosophical, and international legal scholars about the nature of a just war, and appropriate conduct in war, which also have come to underpin and international humanitarian law. An understanding of the links between human rights, war, and conflict can begin with conflict analysis, as human rights violations can be both cause and consequence of conflict. In the most general sense, grievances over the denial or perceived denial of rights can generate social conflict. This may be the case where there is systematic discrimination based upon race, ethnicity, caste, religion, language, gender, or other characteristics. Alternatively, human rights abuses can emerge as a result of violent conflict. A conflict may have been undertaken by the parties primarily out of concern to promote a political or ideological agenda, or to promote the welfare of one or more identity group(s), or over access to resources. Human rights are also potentially transformative of conflicts and may make their resolution a greater challenge. Thus, conflicts that begin as conflicts over resources, religion, or ethnic or territorial claims, may, as they progress, create new grievances through the real and perceived violation of human rights by one or more parties to the conflict.
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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.
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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.
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Human Dignity in International Relations
Salvador Santino F. Regilme Jr.
The literature on dignity in international politics can be analytically evaluated based on three key themes: (a) historical, conceptual, and political underpinnings; (b) international law and global governance; and (c) the global political economy. Although discussions of human dignity within these three themes draw on varied disciplines (philosophy, political theory, political science, law, and history), they demonstrate a shared purpose in investigating the nature of human dignity and its implications to understanding individuals and political orders amid increasing global interdependence. Human rights scholarship has been a firmly established research agenda in international relations (IR) since the end of the Cold War, but the notion of human dignity has yet to gain traction as a key research topic on its own beyond its peripheral association with the human rights literature. Dignity may be a highly contested concept, but its mere invocation in policy and scholarly debates attracts so much moral appeal and intellectual curiosity. If the core normative task of IR research pertains to the improvement of the human condition (and its relationship to global humanity and the ecosystem), then human dignity should feature as a core object of analytic inquiry in the future.
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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.
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Domestic Application of International Human Rights Norms and Universal Jurisdiction
Ronald C. Slye
Domestic courts play an important role in the adjudication of international law, including international human rights law. The relationship between international and domestic law has often been characterized as a continuum between monism and dualism. In a monist system, international law is automatically a part of domestic law, and a conflict between the two is resolved in favor of international law. In a dualist system, domestic law is superior to international law within the domestic legal system, while international law is superior to domestic law within the international legal system. A conflict between domestic law and international law is thus not always resolved in the same way in both systems. In addition, one of the areas with the most active use of international law in a domestic legal system is under a theory of universal jurisdiction. Universal jurisdiction most often involves both the incorporation of international law into a domestic legal system and the assertion outward (extraterritorially) of domestic judicial system. Universal jurisdiction arose initially in the context of criminal prosecutions, but is also found to some extent in civil litigation, particularly in the United States. Under the principle of universal jurisdiction, a state may assert jurisdiction over an offender regardless of the nationality of the offender or victim, the place of commission of the wrongful act, or any other link to the state asserting jurisdiction.
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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.
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Strategic Use of Law in Global Politics
Kyle Reed
Although international law is often understood as a system of restraint—rules meant to constrain what states or other actors may do—attention has increasingly shifted to its use as a strategic tool. Actors often employ international legal references and claims in support of their policy decisions. Law’s status as a unique type of social norm, one that reflects supposedly neutral and agreed-upon rules, gives it a unique place in international politics, which actors may benefit from through the strategic use of international law and legal references in different political arenas. Understanding the place of international law in politics, then, requires understanding how, why, and when actors strategically use it and to what effects. In response to these questions, international relations scholarship has begun to develop new theories to better understand the use of international law in politics—why actors employ it and what makes it effective. This combines insights from rationalist approaches to politics—highlighting the role law can play as a coordination device—with more constructivist ideas on discourse and identity. By identifying the different actors who use international law, and the varied ways in which it can and is employed for strategic purposes, scholarship engages with questions of legalization but also the broader place of law in politics. Simultaneously, scholars have turned their attention to the use of law in different areas of politics. This has set the stage for further scholarship not only on the use of law, or the effect of these uses on political outcomes, but also on the relationship between such strategic uses of law and the meaning and place of the law itself.
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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
The History of International Organization(s)
Bob Reinalda
The emerging discipline of political science recognized international organization as an object of study earlier (i.e., around 1910) than international law, which, through an engagement with League of Nations ideals, began to follow the developments of international organizations (IOs) during the 1920s, and history, which kept its focus on states and war rather than on IOs until the early 2000s. The debate between liberal institutionalism and (dominant after 1945) realism deeply influenced the study of IOs. The engagement of the United States in the United Nations System, however, stimulated further studies of IOs and produced new theoretical orientations that left room for realist factors. The modernization of international relations studies through regime theory eventually removed the need to ask historical questions, resulting in short-term studies of IOs, but new approaches such as constructivism and historical institutionalism contributed to studies of long-term change of IOs and critical junctures in history. The main international relations approach traces the rise of the United Nations System (or, more broadly, IOs) as an instrument of American exceptionalism in the world. This view is being criticized by the paradigmatic turn in the discipline of history in the early 2000s, which has included IOs in its research and relates the creation of IOs to imperial powers, such as the United Kingdom and France, that wanted to safeguard their empires. These historical studies start in 1919 rather than 1945 and question international relations’ Western-centrist universalism by including competing universalisms such as anticolonial nationalism.
Article
Compliance With International Law
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.
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The English School and Institutions: British Institutionalists?
Laust Schouenborg
The argument can be made, and has in fact been made, that the English School is primarily concerned with the study of institutions. The institutions of international society are social in a fundamental sense. That is, they are something above and beyond what one usually associates with an international institution. There are three dominant perspectives on what the primary institutions of international society are: functional, historical/descriptive, and typological. Hedley Bull was the major proponent of the functional perspective, and he identified five primary institutions of international society: the balance of power, international law, diplomacy, war, and the great powers. However, the historical/descriptive perspective appears to be the prevailing one. Nevertheless, various authors have started to think about the institutions of international society typologically. This has certain implications for how one views the cognitive objectives of the English School. The adherence to functional, historical/descriptive, or typological perspectives involves a positioning in relation to where international relations (IR), as a discipline, and the English School, as an approach to it, should locate itself in wider academia.
Article
State Terrorism
Joseph M. Brown
State terrorism is a contentious topic in the field of terrorism studies. Some scholars argue that the concept of terrorism should only be applied to the behavior of nonstate actors. Others argue that certain government behaviors may be understood as terrorism if the intent of state violence and threats is to stoke fear and influence the behavior of a wider audience. Three possible conceptualizations of state terrorism are worth exploring: government sponsorship of nonstate actors’ terrorism, terrorism perpetrated by government agents outside a legal framework, and “inherent” state terrorism—acts perpetrated by the state in the everyday enforcement of law and order that, if perpetrated by nonstate actors, would clearly qualify as terrorism. Each of these conceptualizations yields insight about state behavior, highlighting particular uses of violence and threats as instruments of state policy. Depending on one’s conceptualization of state terrorism, common policies and functions of government possess an underlying terroristic logic. Analytical tools developed in the field of terrorism studies may be useful in helping us understand state behavior, when violence and threats appear to have a broader communicative function in influencing an audience beyond the immediate target.
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Terrorism and Foreign Policy
Amanda Skuldt
Before the late 1960s, terrorism was commonly viewed as an internal problem that belonged to the realm of policing rather than foreign policy. The Palestinian Front for the Liberation of Palestine’s airplane hijackings in Europe, combined with the 1972 Munich Olympics wherein eleven Israeli athletes were captured and held hostage by Black September, gave rise to some foundational counterterrorism policy features; for example, no negotiations with terrorists. But it was not until the 1983–1984 attacks on its embassy and the Marine barracks in Beirut that the United States began to see terrorism as a policy concern. The terrorist attacks of September 11 also led scholars to become increasingly interested in integrating work on international terrorism into international relations (IR) and foreign policy theories. The theories of IR, foreign policy concerns of policy makers, and terrorism studies intersect in areas such as the development of international law governing terrorism, poverty, economic development, globalization, military actions, and questions of whether deterrence is still possible in the age of decentralized terrorist groups and suicidal terrorism. Despite decades of research on terrorism and counterterrorism, some very basic and important gaps remain. Issues that the academic literature on foreign policy or terrorism must address include the effects of the evolving organizational structure of terrorist groups, illegal immigration, the radicalization of European Muslims, and the phenomenon recently identified as “swarming.”
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.
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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.
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