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Article

Jeannette Money

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.

Article

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.

Article

Swati Srivastava

Transnational corporations (TNCs) have assumed a greater share of global power vis-à-vis states. Thus, understanding how to assign corporate responsibility has become more urgent for scholars in international studies. Are corporations fit to be held responsible? If so, what are the existing ways of doing so? There are three research themes on conceptualizing corporate responsibility: (a) corporate criminal liability, in which corporations are assigned responsibility by determining criminal intent and liability in domestic law; (b) corporate social responsibility (CSR), in which corporations are assigned responsibility through praise and blame for adopting voluntary standards that conform with societal values; and (c) corporate international responsibility, a subset of CSR in which corporations are assigned responsibility by hardening international law, especially in human rights and the environment. The three themes feature research on corporate responsibility across a variety of disciplines, including law, criminology, global governance, sociology, business, and critical theory. Each theme prioritizes different debates and questions for research. For corporate criminal liability, the most important questions are about corporate intent in assigning blame for criminal behavior and how to deal with corporate criminal liability in domestic law. For CSR, the most important questions are about determining what obligations corporations take on as part of their social compact, how to track progress, and whether CSR leads to nonsymbolic corporate reforms. For corporate international responsibility, the most important questions are articulating on what grounds corporations should be held responsible for transnational violations of CSR obligations in state-based public international law or contract-based private international law. There are a range of ways to evaluate corporate responsibility in the three research themes. As such, the future of conceptualizing TNCs’ responsibility is diverse and open for examination by scholars of international studies.

Article

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.

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

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.

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

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.

Article

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.

Article

Robert G. Blanton and Shannon Lindsey Blanton

While various forms of slavery and forced labor have existed throughout human history, trafficking in humans is a relatively new area of global concern, as specific laws date back only to 2000. As a legal concept, human trafficking is defined according to its requisite acts (recruitment, transport, harboring of victims), means (use of force, fraud, or coercion), and purpose (exploitation). As a basis for scholarly analysis and public policy, trafficking can be viewed in terms of multiple dimensions, as it constitutes a criminal activity, an egregious abuse of human rights, and a pervasive illicit market. Each of these frames suggests different scholarly approaches to examining trafficking, as well as different policy responses to combat it. For example, a criminal activity frame connotes a prosecutorial response toward traffickers by state agencies, while a human rights-based approach suggests increased attention and services to trafficking victims. There is a significant, though underdeveloped, body of scholarship on the causes of human trafficking. Broadly put, extant work focuses on economic, political, and demographic variables, each of which are part of the wider array of factors that can make trafficking more or less likely. Economic factors can be assessed at both micro and macro levels, ranging from the cost–benefit analyses of traffickers to macroeconomic factors such as poverty and globalization. Political correlates of trafficking include armed conflict, the presence of peacekeepers, and the strength and capacity of domestic political institutions. For their part, nongovernmental organizations (NGOs) can also play a significant role in shaping state responses to trafficking. As trafficking commonly involves the movement of people across borders, some of the same demographic factors that drive migration are also associated with trafficking flows. Taken as a whole, there are still many underexplored avenues for future research. While well over a thousand articles and books have been published on human trafficking since 2000, a majority of extant research is non-empirical in nature, including general overviews of trafficking or analyses of relevant laws. A key factor contributing to this relative dearth of empirical literature is the lack of comprehensive data that reflects the complex and nuanced nature of trafficking. Given the policy-relevant nature of human trafficking, as well as its implications for human rights, there remains a great need for additional evidence-based research in this area.

Article

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.

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

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.

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

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

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

Chenaz B. Seelarbokus

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

Article

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

Article

International Law (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

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.