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Article

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.

Article

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.

Article

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.

Article

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

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

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.

Article

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.

Article

Edwin Egede

The International Law of the Sea, or simply Law of the Sea, is a body of legal norms that regulate the use of the seas and delineate the powers and jurisdiction of States over various parts of the seas. The evolution of the Law of the Sea can be divided into three different eras: the 17th-century great debate over open versus closed seas, era of codification, and era of institutionalization. The debate between early scholars over the issue of whether the sea was open to all and subject to the freedom of the seas (mare liberum or open seas) or whether the seas could be subject to sovereignty by States (mare clausum or closed seas) became the generally accepted basis for contemporary law of the sea. The era of codification saw the convening of three United Nations Conferences on the Law of the Sea—UNCLOS I, UNCLOS II, and UNCLOS III. The Law of the Sea Convention (LOSC), adopted in 1982, initiated an era of the institutionalization of the law of the sea. From early in the 21st century, the international community appears to be leaning toward closed seas, but there are also indications that cooperative arrangements among parties on the law of the sea will be more prevalent. An example of such initiative is the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.

Article

Kathleen Barrett

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.

Article

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

Robert J. Beck and Henry F. Carey

The international law (IL) course offers a unique opportunity for students to engage in classroom debate on crucial topics ranging from the genocide in Darfur, the Israeli–Palestinian issue, or peace processes in Sri Lanka. A well-designed IL course can help students to appreciate their own preconceptions and biases and to develop a more nuanced and critical sense of legality. During the Cold War, IL became increasingly marginalized as a result of the perceived failure of international institutions to avert World War II and the concurrent ascent of realism as IR’s predominant theoretical paradigm. Over the past two decades, however, as IL’s profile has soared considerably, political scientists and students have taken a renewed interest in the subject. Today, IL teaching/study remains popular in law schools. As a general practice, most instructors of IL, both in law schools or undergraduate institutions, begin their course designs by selecting readings on basic legal concepts and principles. Once the basic subject matter and associated reading assignments have been determined, instructors typically move on to develop their syllabi, which may cover a variety of topics such as interdisciplinary methods, IL theory, cultural relativism, formality vs informality, identity politics, law and economics/public choice, feminism, legal realism, and reformism/modernism. There are several innovative approaches for teaching IL, including moot courts, debates, simulations, clinical learning, internships, legal research training, and technology-enhanced teaching. Another important component of IL courses is assessment of learning outcomes, and a typical approach is to administer end-of-semester essay-based examinations.

Article

The room for dialogue between international law (IL) and international relations (IR) is vast. Since the emergence of the liberal world order in the 20th century, there is a growing closeness between IL and IR approaches. Latin America played a significant role in this process, helping to shape the liberal world order. Despite the fact that liberal approaches to IR and IL promote the most self-evident interdisciplinary dialogue, there is a growing intersection field in critical approaches to IR and IL that should be further explored, and Latin America also has a role to play in that cross-fertilization process. By analyzing critical approaches, the narrative in both disciplines can be expanded, bringing a Global South perspective to the mainstream debate. How did IL scholars read changes in the international system from the second half of the 20th century? How did IR scholars read changes in the role of IL in the international system at the beginning of the 21st century? What is the role of Latin America and its contribution to these changes? With this in mind, intersection spaces can be revealed where room for conceptual, methodological, and collaborative work can be explored.

Article

The issue of human rights presents a dilemma for the discipline of international relations (IR) in general and the literature on international institutions in particular. Since international human rights institutions are primarily, but not exclusively, concerned with how states treat their own citizens, they seek to empower individual citizens and groups vis-à-vis their own governments. A major concern is whether such institutions make a difference for the protection and promotion of human rights. This concern has spawned a series of research questions and some major lines of enquiry. The study of human rights regimes has developed at the interface between IR and international law, along with the norms and practices of global human rights institutions. In addition, human rights has been institutionalized globally through the United Nations system and the connections between the development over time of international human rights institutions on the one hand, and their relative effectiveness in shaping human rights behavior on the other. The development and impact of international human rights law and policy have also been influenced by regionalism. While the research on human rights regimes has provided important insights into the role of institutions in narrowing the gap between the rhetoric and practice of human rights, there are crucial areas that need further scholarly attention, such as the domestic actors and institutions that act and could potentially act as “compliance constituencies” and conduits of domestic implementation linking international human rights norms to domestic political and legal institutions and actors.

Article

Marc D. Froese

After World War II, a body of rules and institutions have emerged for the purpose of regulating global flows of goods and services. These are known as world trade law, classified under international economic law, an expanding body of transnational regulatory treaties and institutions. World trade law has evolved within the global trading system following the Second World War, beginning with the General Agreement on Tariffs and Trade (GATT), which came into force in 1948. The most-favored nation and national treatment principles are the most prominent principles that give world trade law its distinctive form. The World Trade Organization (WTO) provides a vast store of literature, which covers the waterfront of legal and political issues that animate the global political economy of trade. The WTO’s predecessor, the GATT, also contributed extensively to the growing body of literature on world trade law. The WTO’s inclusion of agreements on the liberalization of services, investment, and intellectual property have begun lively debates about the possible trajectories of governance in new issue areas, such as anti-dumping and intellectual property rights. In addition to the issues raised by the inclusion of many small economies in the institutions of global trade governance, the rise of world trade law has simultaneously highlighted the many areas of importance to national publics in developed economies where trade overlaps with social priorities.

Article

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

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.

Article

William F. Felice

Economic rights refer to the right to property, the right to work, and the right to social security. Social rights are those entitlements necessary for an adequate standard of living, including rights to food, housing, health, and education. Since economic rights have a social basis, and social rights have an economic basis, both classifications are considered of equal importance and interdependent. The intellectual and social dimensions of economic and social rights have evolved from at least four spheres: religion, philosophy, politics, and law. Throughout history, individuals and groups debated and accepted obligations to help the needy and prevent suffering. There were both religious and secular dimensions to these undertakings. Early human rights advocates moreover proclaimed an interdependence between civil and political rights and economic and social rights and criticized those who made too sharp a distinction between them. A central debate over economic and social rights relates to their legal validity. Some scholars argue that by their very nature, economic and social rights are not “justiciable.” Another issue is the link between economic and social rights in meeting basic human needs and the alleviation of global poverty. The right to development is also important in debates on economic and social rights, as it attempts to correct the economic distortions left by the legacy of colonial domination. Perhaps the most promising new approach to economic and social rights is Amartya Sen’s capabilities approach, which focuses on what individuals need for adequate functioning.

Article

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

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

The concept of sovereignty has been the subject of vigorous debate among scholars. Sovereignty presents the discipline of international law with a host of theoretical and material problems regarding what it, as a concept, signifies; how it relates to the power of the state; questions about its origins; and whether sovereignty is declining, being strengthened, or being reconfigured. The troublesome aspects of sovereignty can be analyzed in relation to constructivist, feminist, critical theory, and postmodern approaches to the concept. The most problematic aspects of sovereignty have to do with its relationship to the rise and power of the modern state, and how to link the state’s material reality to philosophical discussions about the concept of sovereignty. The paradoxical quandary located at the heart of sovereignty arises from the question of what establishes law as constitutive of sovereign authority absent the presumption or exercise of sovereign power. Philosophical debates over sovereignty have attempted to account for the evolving structures of the state while also attempting to legitimate these emergent forms of rule as represented in the writings of Hugo Grotius, Samuel von Pufendorf, Jean Bodin, Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and Georg Wilhelm Friedrich Hegel. These writers document attempts to grapple with the problem of legitimacy and the so-called “structural and ideological contradictions of the modern state.” International law finds itself grappling with ever more nuanced and contradictory views of sovereignty’s continued conceptual relevance, which are partially reflective and partially constitutive of an ever more complex and paradoxical world.