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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

Political scientists—primarily in the discipline’s international relations subfield—have long studied international law. After considering how political scientists and legal scholars define international law, this article identifies five stages of political science research on international law, including the current interdisciplinary international law and international relations (IL/IR) stage, and it reviews three trends in political science research that constitute an emerging sixth stage of interdisciplinary scholarship: a law and world politics (L/WP) stage. First, moving beyond the “IL” in IL/IR scholarship, international relations scholars are increasingly studying domestic law and domestic courts—not only their foundational role in supporting international law and international courts but also their direct role in core areas of international relations, including international conflict and foreign policy. Second, moving beyond the “IR” in IL/IR scholarship, political scientists are adapting their research on international law to the broader world politics trend in political science by studying types of law—including extraterritoriality, conflict of laws, private international law, and the law of transnational commercial arbitration—that govern the transnational activity of private actors and can either support or hinder private global governance. Third, moving beyond the domestic-international divide, political scientists are increasingly rejecting “international law exceptionalism,” and beginning to take advantage of theoretical convergence across the domestic, comparative, and international politics subfields to develop a better general understanding law and 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

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

Gianfranco Gabriele Nucera

Outer space has always assumed a relevant geopolitical value due to strategic and economic reasons. Since the beginning of the so-called space age, national space policies have pursued both political and economic objectives, taking into account fundamental security and military considerations. After the Second World War, the international relations were based on the dichotomy between the United States and the Soviet Union. The foundation of activities in outer space finds its roots in the Cold War and reproduces the distinctive geopolitical dynamics of that historical moment. The diverging interests between the two states were reflected in the political tensions that characterized the competition to reach outer space. The classical geopolitics deals with how states should act in outer space to increase their influence in the international arena. According to the theories developed during the space race, whoever controls outer space controls the world. In this sense, security on Earth depends on the security in space, ensured by national control over the strategic assets. Space applications had indeed a central role in the context of deterrence. In addition, conducting activities in outer space represented an important tool of foreign policy and for the enhancement of international cooperation, mainly within the blocs. International geopolitical dynamics were reflected on space regulations developed during the Cold War era. The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (OST) is the main legal instrument, which codifies the general principles in international law of space activities. Over the past few decades, space activities have changed due to the growing participation of non-state actors to the so-called space economy. The end of the Cold War era produced a structural change of the international relations in the space sector. The traditional scheme of cooperation within the Western, or Eastern, bloc was overcome by a stronger multilateral cooperation, such in the case of the International Space Station. Furthermore, the end of the Cold War busted the regionalization of space cooperation. Furthermore, space activities are relevant for the well-being of humankind. Many services provided by public and private companies, such as satellite broadcasting, weather forecasts, or satellite navigation, have a strong socioeconomic impact. In addition, the protection of the environment in outer space has become a central theme in the international debate, with a focus on mitigation and removal of space debris. These issues are reflected in increasing legislation, adopted to regulate space activities on a national level. This evolution, along with technological changes, poses political challenges to the actors involved in the space arena and creates a competitive geopolitical situation in which states aim at protecting their national interests in outer space. In this context, the international space governance plays a fundamental role in bringing together national interests toward a collective interest in protecting and promoting space activities for the benefit of humankind and with due regard to the corresponding interests of all states.

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

International Criminal Justice is a controversial concept, and there is a burgeoning body of literature on its exact contours. Understood broadly, the term “international criminal justice” covers a broad category, integrating international criminal law (ICL) within an overarching interdisciplinary enterprise also “incorporating philosophical, historical, political and international relations, sociological, anthropological and criminological perspectives” (Roberts, 2007). International criminal law consists, at its core, of a combination of criminal law and public international law principles. The idea of individual criminal responsibility and the concept of prosecuting an individual for a specific (macrocriminal) act are derived from criminal law, while the classical (Nuremberg) offenses form part of (public) international law and thus the respective conduct is directly punishable under ICL (principle of direct individual criminal responsibility in public international law). The dualistic base of international criminal law is also reflected in the reading of the mandates of the international criminal tribunals; one can either take a “security, peace, and human rights”–oriented approach or a “criminal justice”–oriented approach, either of which may entail a paradoxical goal or purpose ambiguity of international criminal law. In any case, the strong grounding in criminal law, together with the actual enforcement of international criminal law by way of international criminal proceedings and trials, converts international criminal law into criminal law on a supranational level and thus entails the full application of the well-known principles of liberal, post-enlightenment criminal law, in particular the principles of legality, culpability, and fairness. These principles constitute the minimum standard of any criminal justice system based on the rule of law and thus must also apply in an international criminal justice system. The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 and the effective establishment of the Court in 2002 have led to an institutionalization of international criminal law, turning the page on ad hoc imposition in favor of a treaty-based universal system. In addition, the Rome Statute provides for the first codification of international criminal law, with a potentially universal reach. Therewith, international criminal law was not only united into a single penal system of the international community, but it was also extended beyond its fundamental core areas of substantive and procedural law into other branches of criminal law (law of sanctions, enforcement of sentences, and judicial assistance).

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

P.J. Blount

The use and exploration of space by humans is historically implicated with international and national security. Space exploration itself was sparked, in part, by the race to develop intercontinental ballistic missiles (ICBM), and the strategic uses of space enable the global projection of force by major military powers. The recognition of space as a strategic domain spurred states to develop the initial laws and policies that govern space activities to reduce the likelihood of conflict. Space security, therefore, is a foundational concept to space law. Since the beginning of the Space Age, the concept of security has morphed into a multivariate term, and contemporary space security concerns more than just securing states from the dangers of ICBMs. The prevalence of space technologies across society means that security issues connected to the space domain touch on a range of legal regimes. Specifically, space security law involves components of international peace and security, national security, human security, and the security of the space environment itself.

Article

Wayne Sandholtz

In the first wave of scholarship on international norms, the primary task was to convince a skeptical discipline that norms affect domestic and international outcomes. A second phase of international norms research developed political theories of the emergence and establishment of new international norms. Transnational actor models as well as “legalization” and “rational design” approaches tested propositions on norm creation but did not theorize what happens after norms are created. General norms inevitably collide with the relentless specificity of experience. Actors constantly dispute the meaning and application of norms. The resultant arguments modify the norms being contested, and the modified norms then shape subsequent behavior and disputes. The third wave of international norms research has focused on the inherent dynamism of norms and norm systems. Norms emerge through processes of transnational advocacy and institutional design, but they also evolve through cycles of application and disputation.

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 adoption by the United Nations of the Universal Declaration of Human Rights in 1948 marked the beginning of the modern international human rights regime. Since then the number of international treaties that protect human rights, as well as the number of internationally recognized rights, has greatly increased. The increasing number and scope of international treaties attests to the fact that advocates for human rights view treaties, which are legally binding in principle, as useful tools for promoting respect for the various rights identified in international law. Only recently have scholars begun to collect and systematically examine evidence concerning the effectiveness of human rights treaties. This new body of research is motivated by a question that has obvious normative import and policy relevance: do we have good evidence that the widespread adoption of international human rights law has had any meaningful impact on the level of respect that states exhibit for the rights articulated in international law? To date, this literature suggests three sources of variation in the effectiveness of human rights treaties: (1) variation in the domestic political and legal institutions that facilitate enforcement and compliance, (2) variation in the nature of the rights protected by different treaties and the nature of violations, and (3) variation in the strength of governments’ commitments to the UN treaty regime. All three sources of variation point to opportunities to advance our understanding of the conditions under which international human rights law can achieve its goals.

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

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

Article

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

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

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

Increased water variability is one of the most pressing challenges presented by global climate change. A warmer atmosphere will hold more water and will result in more frequent and more intense El Niño events. Domestic and international water rights regimes must adapt to the more extreme drought and flood cycles resulting from these phenomena. Laws that allocate rights to water, both at the domestic level between water users and at the international level between nations sharing transboundary water sources, are frequently rigid governance systems ill-suited to adapt to a changing climate. Often, water laws allocate a fixed quantity of water for a certain type of use. At the domestic level, such rights may be considered legally protected private property rights or guaranteed human rights. At the international level, such water allocation regimes may also be dictated by human rights, as well as concerns for national sovereignty. These legal considerations may ossify water governance and inhibit water managers’ abilities to alter water allocations in response to changing water supplies. To respond to water variability arising from climate change, such laws must be reformed or reinterpreted to enhance their adaptive capacity. Such adaptation should consider both intra-generational equity and inter-generational equity. One potential approach to reinterpreting such water rights regimes is a stronger emphasis on the public trust doctrine. In many nations, water is a public trust resource, owned by the state and held in trust for the benefit of all citizens. Rights to water under this doctrine are merely usufructuary—a right to make a limited use of a specified quantity of water subject to governmental approval. The recognition and enforcement of the fiduciary obligation of water governance institutions to equitably manage the resource, and characterization of water rights as usufructuary, could introduce needed adaptive capacity into domestic water allocation laws. The public trust doctrine has been influential even at the international level, and that influence could be enhanced by recognizing a comparable fiduciary obligation for inter-jurisdictional institutions governing international transboundary waters. Legal reforms to facilitate water markets may also introduce greater adaptive capacity into otherwise rigid water allocation regimes. Water markets are frequently inefficient for several reasons, including lack of clarity in water rights, externalities inherent in a resource that ignores political boundaries, high transaction costs arising from differing economic and cultural valuations of water, and limited competition when water utilities are frequently natural monopolies. Legal reforms that clarify property rights in water, specify the minimum quantity, quality, and affordability of water to meet basic human needs and environmental flows, and mandate participatory and transparent water pricing and contracting could allow greater flexibility in water allocations through more efficient and equitable water markets.

Article

There are few questions more interesting and more important for the international community than the issue of how new states are created and accepted into the wider global system through the process of recognition. While there are thousands of ethnic groups around the world, there are just 193 member states of the United Nations. And yet, for many years, the foreign policy aspects of secession and the recognition of seceding territories have received relatively little attention by scholars in the field of politics and international relations. This was largely because the subject was seen to be a marginal interest. Few territories managed to stage a credible attempt at secession. Almost none managed to gain widespread acceptance. However, over the past decade, there has been a significant growth in the attention given to secession and recognition in international relations. This has been particularly apparent since Kosovo’s unilateral declaration of independence from Serbia, in 2008, and because of heightened secessionist tensions in the former Soviet Union. To date, the question of de facto states—territories that are unrecognized or partially recognized—has been at the heart of studies into secession and recognition in the field of politics and international relations. Attention in this area has tended to focus on the nature, structure, and international interaction of unrecognized territories. However, the scope of research is now widening. As well as interest in the historical development of attitudes towards secession and recognition practices, scholars are now looking at the way in which parent states—as the territories they have broken away from are generally known—attempt to prevent de facto states from being recognized or otherwise legitimized by the international community. Meanwhile, increasing attention is also being given to the role of external parties, such as great powers, as well as to the efforts of secessionist territories themselves to find ways to encourage recognition, or at least to participate more widely in the international system. Therefore, while the community of scholars working in the field of secession and recognition is still relatively small, the subject itself is undergoing rapid growth.

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.