Paradigm Of International Law Research Articles

Realpolitik in Global Governance: Understanding the Competing Realist and Cosmopolitan Narratives of the Nineteenth Century Era of International Law

Realpolitik in Global Governance: Understanding the Competing Realist and Cosmopolitan Narratives of the Nineteenth Century Era of International Law

Separation of powers in a globalized democratic society: Theorizing the human rights treaty organs’ interactions with various state organs

Abstract As part of their continuous effort to enhance the effectiveness and democratic legitimacy of human rights treaties, human rights treaty organs have increasingly fostered a direct relationship with various state organs, thereby penetrating the ‘states’ that traditionally have been treated as monolithic legal entities. Treaty organs review the decision-making process of each type of state organ – courts, parliaments and administrative organs – and make remedial orders that are substantially addressed to specific state organs. Such phenomena go hand in hand with the relativization of the distinction between the legal spheres in which human rights treaty organs and state organs operate. This is the first study to address such phenomena as a totality. It constructs the ‘separation of powers in a globalized democratic society’ theory, thereby proposing how each type of state organ and the treaty organs should interact under human rights treaties. Its findings contribute, first, to the harmonious achievement of the effectiveness and democratic legitimacy of human rights treaties; second, to the reform of the classical paradigm of international law, in which monolithic states are the only relevant legal entities; and third, to the long-standing debates on the relationship between international and national laws from a new angle.

The Need for a New Paradigm in International Law to Provide International Protection

Abstract Too little is provided, not only in international law, but also by the United Nations, for victims around the world. This article therefore argues that a new paradigm is needed. It uses the conflict in Syria since 2011, specifically focusing on how enforced disappearances and arbitrary detentions have been used, to examine these questions. It has been reported that at least 150,000 people have been affected by these practices, but the number may be as high as a million. Because the state has used these practices methodically, they amount to a widespread and systemic attack on the civilian population and, therefore, to crimes against humanity. While the Syrian regime is primarily responsible, non-state actors have also been committing these types of crimes. The article discusses the general processes that have been set up to deal with the conflict in international law and by the United Nations in places like Syria. It finds that very little has been done to end the conflict in Syria, other than mediation. The article then reviews the international processes dealing with disappearances and detentions in Syria that families can report to, and the role these institutions have played so far. It again finds that very little has been achieved. The article also examines other countries where processes have been set up to deal with missing and disappeared persons, such as Armenia, Azerbaijan, Bosnia-Herzegovina, Cyprus, and Georgia, to learn the lessons from these past processes for the Syrian situation. It is argued that, generally when mass atrocities occur, the UN on rare occasions will create an accountability process, but never creates a process that focuses on the needs of victims: finding their loved ones, getting them released from custody if they are alive, or finding the truth about what happened to them and where their remains are. The article therefore argues that a new mechanism is needed for Syria (but also for other places) to get people released, and to find information on others whose whereabouts are unknown due to the conflict and/or the mass human rights abuses. It contends that the mechanism could be set up by the UN, and if not, by a regional actor such as the European Union, or by several states. It is reasoned that the mechanism ought to have a Board made up of a representative each from the International Committee of the Red Cross (icrc), the International Commission on Missing Persons (icmp), the UN Working Group on Enforced or Involuntary Disappearances (wgeid), the UN Working Group on Arbitrary Detentions (wgad) and a Syrian organisation, elected each year.

New Face of International Law From Western to Global Construct

The modern international law, not only imitates, but the substance is truly the European values and traditions. The European nations produce the norm of international law with a clear objective is to divide the world into "selves" (European nations) and "others" (non-European nations). This is exacerbated by European colonialism and imperialism, which allow their values and traditions to become hegemonic norms that ultimately produce the paradigm of "otherness" in international law. Non-European nations are "others", which are considered only as users of the European values. The “otherness” paradigm in international law is resulted from the universal claim of the European values. It is a hegemonic technique. The paper argues that International law should move from the “otherness” to the “togetherness” paradigm. This requires a new approach in the making of international norms, from claim to consent, and now it has led to the global values approach. The paradigm of togetherness requires an inter-civilizational approach, and universality is the keyword. Universal norms should not be put on an abstract level; they need transformation into the particular idioms. Universality is not a matter of claim; it is a respect and acceptance of cultures and values of other nations. International law requires a paradigm shift, from Western to Global Construct.

The Issue of Immunity of Private Actors Exercising Public Authority and the New Paradigm of International Law

Summary 1. The changing image and structure of international law – 2. The exercise of public authority through delegation – 3. The question of state immunity in the context of hybridisation between public and private – 4. The content of the activity as a paradigm to guide the extension of state immunity – 5. The issue of limiting the immunity of delegated non state actors – 6. Conclusions

The Up-to-Dateness of the Debate on Responsibility to Protect

The aim of the article is to review the contemporary debate on the concept of Respon-sibility to Protect. Numerous publications concerning R2P are the best illustration of the fact that it is a very topical subject. Analysing the doctrinal issues focusing on new challenges for contemporary international law the author focuse on a visible change in the international law paradigm, transformation of moral norm into legal one and the effective use of the instruments of R2P application.

Democracy Under The Influence: Paradigms of State Responsibility for Cyber Influence Operations on Elections

Ever since allegations arose of Russian meddling in the 2016 United States presidential election, cyber influence operations have garnered worldwide attention. This article examines the different options available under international law for holding States responsible for cyber influence operations on elections. To this end, the article first elaborates a typology of different cyber election meddling techniques, before examining three paradigms of international law that may be relied upon to frame State responses to cyber influence operations – the general public international law paradigm, the human rights paradigm, and the State liability paradigm. The article concludes by considering why States have so far avoided the vocabulary of international law in formulating their responses to cyber influence operations and offers a suggestion as to where international law may have a more central role to play in this context in the future.

Squaring the circle: How the right to refuge can be reconciled with the right to political identity

From the perspective of the dichotomy between the paradigms of international law and relations—particularism, on the one hand, and universalism on the other—the right to seek refuge in view of a threat against the fundamental conditions of a decent life, and the right to preserve the identity of the political community, seem to be irreconcilable. While the supporters of the particularistic understanding of international order claim the superiority of the identity of the individual political community, the advocates of universalism promote the right to seek asylum without consideration of national borders. Yet, on both sides of the dichotomy things are not as definite as they seem to be at first glance. In fact, not every parochialism is insensitive to the rights of “others,” and cosmopolitanism has to acknowledge that rights should be regarded as differentiated when they refer to rights holders in different situations. Building on this potential rapprochement, a framework is developed for the recognition of the right of aliens to refuge which, nevertheless, also presupposes that citizens justifiably hold a “thicker” endowment of rights than strangers. On this basis, the following questions are addressed: (i) what are the specific rights of citizens that make them different from aliens? (ii) what is entailed in the right to refuge? (iii) under which conditions can a right to refuge be claimed? and (iv) on the contrary, when is it justified to deny the right to cross borders in the name of preserving the integrity of the political community?

Introduction: Resistance, disobedience or constituent power? Emerging narratives of transnational protest

Transnational social movements, campaigns and individual activists have described their activities in the traditional vocabularies of political dissent: as protest, opposition, contestation, dissidence or rebellion. Where strategies have involved illegal, well-publicised activities, the vocabularies of resistance and of civil disobedience have become an activist lingua franca. What all such descriptions have in common is that they paint a largely defensive picture of activist aims and self-understandings. In contrast, the emergence of the ‘global constitutionalist’ paradigm in international law and politics has re-introduced the category of constituent power. Transnational initiatives such as the Democracy in Europe Movement 2025 (DiEM25) have begun to frame their activities in a ‘constitutive’ and less in a ‘reactive’ language. When countering the challenges of cross-border domination, new collectives may grasp the chance for extra-institutional self-activation. The special issue aims to assess and compare the features and the various strengths and weaknesses of the respective languages of contestatory and constitutive politics.

Squaring the Circle: How the Right to Refuge Can Be Reconciled with the Right to Political Identity

From the perspective of the classical dichotomy between the main paradigms of international law and relations – particularism, on the one hand, and universalism on the other – the right to seek refuge in view of a significant threat against the fundamental conditions of a decent life, and the right to preserve the always fragile identity of the political community, seem to be hopelessly irreconcilable. While the supporters of the particularistic understanding of international order claim the unquestionable superiority of the identity of the individual political community, the advocates of universalism decidedly promote the right to seek asylum without consideration of national borders. Yet, on both sides of the apparent dichotomy things are not as definite as they seem to be at first glance. In fact, not every parochialism is insensitive to the rights of “others”, and cosmopolitanism has to acknowledge that rights should be regarded as differentiated insofar as they refer to rights-holders in different situations. Building on this potential rapprochement – and, therefore, on the overcoming of the classical dichotomy between particularism and universalism – a framework is developed for the recognition of the right of aliens to refuge which, nevertheless, also presupposes that citizens justifiably hold a “thicker” endowment of rights than strangers. On this basis, the following questions are addressed: a) what are the justifiable specific rights of citizens that make them different from aliens? b) What is entailed in the right to refuge? c) Under which conditions can a right to refuge be claimed? d) And, on the contrary, when is it justified to deny the right to cross borders in the name of preserving the integrity of the political community?

Ibn Khaldun (1332–1406): A Precursor of Intercivilizational Discourse

AbstractThis article shows how the political, historical, sociological, and economic narrative of Ibn Khaldun influenced the conjunction of elements that were essential to the civilizing language promoted by European and American liberals in the nineteenth and twentieth centuries. The ‘standard of civilization’ has experienced a revival among critical legal scholars. These authors have reconstructed a historical process of ‘rise, fall, and rise’ of the ‘standard of civilization’, identifying its reappearance in an era of globalization and global governance with the current existence of a (neo-)colonial paradigm in international law and a (neo-)liberal global economy. This study is divided into three parts intended to examine in depth the precursory role of this Islamic thinker in the shaping of civilizing language. The first part examines Ibn Khaldun's life as a way of understanding his thinking on civilization. The second part explores the influence of Ibn Khaldun's work on the discourse surrounding the standard of civilization, by reintroducing the interpretation of Rafael Altamira (1866–1951). The third starts with Ibn Khaldun's writings on economic science and Joseph Spengler's (1902–1991) approach to his works. Several Islamic economic institutions and their influence on the state and concept of international society are examined. The revival of Ibn Khaldun's thinking is partly intended to fill an existing gap in the studies of medieval Islamic theorists. By examining his ideas about the socio-political and economic viability of a dynasty (or a civilization or a state), this article attempts to shed light on the intercultural origins of international law.

Negotiating failure: understanding the geopolitics of climate change

Negotiating failure: understanding the geopolitics of climate change

Delinking International Environmental Law and Climate Change

This Article challenges the existing paradigm in international law that frames global efforts to address climate change as a problem of and for international environmental law. The most recent climate reports tell us that warming is unequivocal and that we are already experiencing the impacts of climate change at the domestic level in the United States. Against this backdrop, much has been written recently in the United States about domestic efforts to address climate change. These efforts are important, but they leave open the question of how the global community can work together to address the greatest collective action problem of our time. Focusing on international efforts to address climate change, this Article pushes back against the dominant framing of global climate change as a problem of and for international environmental law. It argues that the static nature of the existing global paradigm brings about two primary harms. First, the failure to address climate change overshadows the larger field of international environmental law in a way that inhibits efforts to address a suite of persistent environmental problems beyond climate change. Second, framing climate change as a traditional environmental law problem constrains efforts to think more creatively about how to address a problem that defies classification as an environ- mental issue and demands innovative governance approaches. In making the legal case for delinking the debates about international environmental law and global climate change, this Article argues that challenging the existing global paradigm is critical to thinking more constructively about collective action in the climate context.

Sea-Level Rise and International Law

Since core aspects of international law rely on the general stability of geographical conditions, sea-level rise may bring fundamental challenges and require profound re-examination of currently accepted paradigms of international law. This article briefly addresses three questions: first, are the prospects of sea-level rise already a real concern from the viewpoint of international law? Second, what is the relevance of this perspective for current international law? And third, how should international law in the future approach the phenomenon of sea-level rise?

Delinking International Environmental Law & Climate Change

This Article challenges the existing paradigm in international law that frames global efforts to address climate change as a problem of and for international environmental law. The most recent climate reports tell us that warming is unequivocal and that we are already experiencing the impacts of climate change at the domestic level in the United States. Against this backdrop, much has been written recently in the United States about domestic efforts to address climate change. These efforts are important, but they leave open the question of how the global community can work together to address the greatest collective action problem of our time. Focusing on international efforts to address climate change, this Article pushes back against the dominant framing of global climate change as a problem of and for international environmental law. It argues that the static nature of the existing global paradigm brings about two primary harms. First, the failure to address climate change overshadows the larger field of international environmental law in a way that inhibits efforts to address a suite of persistent environmental problems beyond climate change. Second, framing climate change as a traditional environmental law problem constrains efforts to think more creatively about how to address a problem that defies classification as an environmental issue and demands innovative governance approaches. In making the legal case for delinking the debates about international environmental law and global climate change, this Article argues that challenging the existing global paradigm is critical to thinking more constructively about collective action in the climate context.

Discovering Indigenous Lands: The Doctrine of Discovery in the English colonies (review)

Reviewed by: Discovering Indigenous Lands: The Doctrine of Discovery in the English colonies Signa A. Daum Shanks Discovering Indigenous Lands: The Doctrine of Discovery in the English colonies Robert J. Miller, Jacinta Ruru, Larissa Behrendt and Tracey Lindberg. Oxford and New York: Oxford University Press, 2010. This work is a collaboration by four authors, all of whom are Indigenous and all of whom decide to focus on the location of their ancestors and the system of the Doctrine of Discovery that has developed in that location. As a result, Discovering Indigenous Lands includes analysis about the regions of the world now labeled as Canada, the United States, Australia and New Zealand. First, the book includes a short chapter which explains the authors' understanding about the Doctrine, its role within the paradigm of international law and then how England's efforts perpetuated the Doctrine's application throughout the world. Next, chapters appear that are devoted to the four different areas in the world where the authors' own heritages originate. Each author has a different technique for introducing information and analysing the law. Two authors, Lindberg and Behrendt, choose to have sections which investigate the concept in the region and then present observations about how the concept resonates in law, political arenas and social policies. Ruru, in her analysis about Aotearoa/New Zealand, decides that having two sections with a generally chronological construction helps reveal how her ancestors' region has experienced the Doctrine. In introducing events in the lands now known as the United States, Miller contends that having a portion devoted to legal norms and then discussing historical events helps expose the components of the Doctrine and how those qualities have resonated in non-law-based sectors of societies located in the United States. While the methods used by each writer and some of the specific details contained in their sections are different, all the writers determine that the use of the Doctrine of Discovery has been based on racism, the pursuit of wealth for a colonizing country without regard of the found country's actual capabilities or the interests of those located in those found countries. To solidify their perspectives, the authors mainly use legal documents to trace the roots of how colonizing parties acknowledged and used the Doctrine while attempting to dominate other parts of the world. In addition, the book also contains documentation that reveals how those who used (and currently perpetuate) the Doctrine also rarely apply it consistently or in tandem with other laws of the time. In other words, the imposers of the Doctrine have goals, and those goals will be pursued regardless of whether the laws of their country actually approve the process. As a result of the authors' data and their sources, we learn how the Doctrine is race-based, violent and, in fact, not even particularly productive. As a turn of phrase, its nature shifts so those who have used it have also made it act as the justification for actions they have pursued. Certain ends are imagined, whatever acts it takes to get those ends are done, and repeatedly the source which allowed parties to complete those acts, the Doctrine, is mentioned. The book is also peppered with descriptions of modern events, such as the "Northern Territory Intervention" in Australia or the 2003 Ngati Apa decision in New Zealand, that illustrate how various individuals and groups have not been treated in the same way, so that the rule of law has been jeopardized by the Doctrine's frequent use. The text also contains descriptions of what are sometimes called by other researchers "unintended consequences," such as how national parks and conservation policies interact with the constructs judges have made about Indigenous perspectives and federal authority as an extension of the Doctrine's influence. In these descriptions, we learn where the form chosen for the Doctrine even fails those who decided to impose it. At moments such as these, the colonizers continue to claim the law is on their side, but they also continue the concept's trend of illegitimacy by modifying specific policies and making the Doctrine's foundation even more legally tenuous. Except, of course and as the authors regularly highlight...

Adiós a Westfalia : hacia la «constitución» de un derecho cosmopolita

Starting from the explanation of the preconcepts of law and sovereignty, this essay analyses the symptoms of the transformation of the classic paradigm of international law, which is founded on a will - centered model introduced by the peace of Westphalia in the XVII century, whose peak can be seen in the «Lotus case» in 1927, towards a constitutional paradigm typical of public law, which acquires the shape of a cosmopolitan law whose seminal constitution can be found in the United Nations charter, the universal declaration of human rights and ius cogens.

Business and Human Rights: The Search for Effective Remedies

Are John Ruggie’s Guiding Principles going far enough? Maybe yes, from the perspective of States, but for sure no from the perspective of human rights NGOs, and in between from the perspective of the present paper. It shortly discusses some core notions and shortcomings: 1) Let States share their responsibilities with the civil society, without ‘privatizing these responsibilities away.’ 2) Keep using and further developing other means of pressure upon companies, alongside the legal ones; ask States to further frame the context and the space for self-regulation; keep pressuring upon further detailing international obligations, including ongoing specifications of the concept of extraterritoriality. 3) Keep reading promises by companies into contracts. 4) Keep emphasizing that treaty bodies and Courts have to go after the real perpetrators and should not be ‘captured’ and hindered by the traditional international law paradigm. 5) Keep looking at the reliability of national legal systems and the need to have backups, preferably by other national systems or, if appropriate and needed, international ones. 6) Keep looking at practical problems such as costs, the absence of (para)legal representation, the non-accessibility of legal language. 7) Keep using ‘in between means’ such as round tables, mediation and arbitration. Emphasis upon prevention and being proactive if possible, while using proportional, low cost means first, with hard legal means as last resort. Finally, 8) Keep emphasizing the need of human rights impact assessments, in order to work evidence based. Human rights discourses are sometimes driven by morality and ideals, but the best approaches match with empirical findings.

Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-State Paradigm of International Law

AbstractParagraph 80 of the Kosovo AO reflects a very traditional conception of international law. By insisting on the inter-state character of the principle of territorial integrity, the Court refused to challenge the classical argument of the ‘neutrality’ of international law in regard to secession. The Court also refused any reinterpretation of Article 2(4) of the UN Charter. As already stated in the Wall Advisory Opinion, the prohibition of the use of force is only applicable between states. It does not apply between states and non-state actors, whether secessionist or not. Similarly, the Court refused the argument of ‘remedial secession’, at least as far as it would imply a right to violate the principle of territorial integrity of a state by a secessionist group. Indeed, if the latter principle is not applicable in such situations, it logically cannot be violated and there is therefore no right to infringe it. Finally, the Court refused to consider Kosovo as a ‘special case’ or a sui generis situation. According to the Court, this situation must be governed by the traditional rules of general international law. This implies that Kosovo did not violate international law by proclaiming independence. But this also implies that a declaration of independence by a secessionist group inside Kosovo would not be contrary to international law. Moreover, it can be pointed out that if Kosovo is not a state (a hypothesis perfectly compatible with the advisory opinion), then general international law would not preclude Serbia from invoking the argument of ‘legal neutrality’ to support such a secessionist group.

The Wilsonian Challenge to International Law

AbstractAfter the Great War, Woodrow Wilson challenged the foundations of international law based on fully sovereign states. “Wilsonianism” as elaborated in the Fourteen Points, and in other speeches, rested on a logic that made a universalized liberal individual the locus of sovereignty in the new world order. The truly radical implications of Wilsonianism had no sterner critic than Robert Lansing, Wilson's secretary of state and one of the founders of the American Journal of International Law. Lansing held tenaciously to a positivist paradigm of international law as it had evolved by the early twentieth century. This article reconsiders the conflict between Wilson and Lansing not so much as a duel between individuals as a duel between conflicting conceptions of sovereignty and the purpose of international law in the new world order.