Political International Law Research Articles

The power of interpersonal relationships: A socio-legal approach to international institutions and human rights advocacy

AbstractThis article further develops and illustrates the argument that relationships between individuals help to explain the success of human rights advocacy in international institutions. Drawing from advocacy theory and socio-legal studies, I shift the attention from collective forms of advocacy to the importance of interpersonal relationships of advocates with individuals in international institutions to influence the development of human rights. I introduce a framework consisting of three analytical steps – mapping the key actors in a network, process-tracing, and biographical research – and apply the framework to three cases of norm development by a United Nations human rights treaty body. My findings highlight the power of interpersonal relationships for the making of human rights, and they inform scholarship on transnational elites, human rights advocacy, and the politics of international law.

Double Agents

Double Agents

International court curbing in Geneva: Lessons from the paralysis of the WTO Appellate Body

AbstractThe 21st century has witnessed a backlash against many international courts (ICs). Studies of IC backlash have generally taken an optimistic tack, noting that most courts have survived backlash intact or—in the case of the paralyzed Appellate Body (AB) of the World Trade Organization (WTO)—are likely to do so after a temporary period of slumber. In this context, this paper analyzes the United States' successful effort to paralyze the AB, deriving lessons from this deviant case of backlash against one of the world's most active and independent ICs. Undertaken in the context of the “Reversing Delegation” research project, this account is organized in five parts. First, I demonstrate that the creation of the AB was a classic instance of delegation of dispute‐settlement power, and that the AB quickly emerged as an active agent of trade liberalization. Second, I explore the roots of politicization, noting that dissatisfaction with AB jurisprudence preceded the Trump administration, although Trump's delegitimation of the AB was more far‐reaching than that of his predecessors. Third, I examine the administration's use of the veto power to paralyze the AB, an act of de facto de‐delegation. Fourth, I assess the pushback from the many other WTO members that sought to defend the AB, showing how they failed to blunt the US campaign. Fifth, I analyze the remarkably successful outcome of the US attack, and draw lessons for judicial independence and the rule of law in international politics.

The Politics of International Law in the Post-Soviet Space: Do Georgia, Ukraine, and Russia ‘Speak’ International Law in International Politics Differently?

Since the Soviet Union’s collapse, Ukraine, Georgia and Russia have faced the challenge of taking their positions in the politics of international law as part of their transformation processes. Strong dynamics of conflict have shaped these states’ politico-legal actions and interactions, for example, the Russo–Georgian War, the annexation of Crimea and the armed conflict in East Ukraine. This essay explores whether, how and why Georgia, Ukraine and Russia ‘speak’ international law in international politics differently. It discusses conceptual approaches to empirically analysing the processes of translating political preferences into legal arguments as well as how ‘communicators of international law’ in the post-Soviet region use the language of international law differently.

The Workings of Power in Transnational Law

Studying the transnational politics of law implies a transdisciplinary research framework. In various sub-fields of law and society studies, scholars stress the political moment of law and legal practice by attempting to understand law-as-something-else (e.g. law as culture, law as geographical knowledge, law as literature, etc.). The paper argues that this points to a yet unexploited possibility: by moving beyond an interdisciplinary understanding of the role of international law in international politics and beyond an understanding of international law as type of international norms to be studied in an analytical framework of IR norms research, the idea is to study (inter- or transnational) law as politics. To achieve a deeper understanding of the politics of law and the mechanisms of power at work within law, it is necessary to zoom in on the sites in which law is forcefully applied. Drawing on insights in Legal Realism and the Critical Legal Studies, I argue that to account for law-as-politics—and that is the workings of power in law and legal practice—it makes sense to address legal norms as critical resources of power. It is in this sense that the paper calls for an inclusion of IR theory into the law and society studies research program.

Grotius’ ‘Rule of Law’ and the Human Sense of Justice: An Afterword to Martti Koskenniemi’s Foreword

Abstract Rereading Grotius in 2019 as a sequel to the 1990 and 2009 European Journal of International Law’s contributions on ‘the politics of international law’, at a time of staggering global inequality, Martti Koskenniemi asks what we can learn from Grotius about the ‘tendency [of humans] to subordinate themselves’ to law and, I may add, the limits of that tendency. While I agree with Koskenniemi that Grotius’ ‘rule-of-law’ conception may help us understand the current backlash against the international rule of law, I suggest an alternative reading of this conception that may assist us even more. Grotius’ understanding of humans and of the importance of corrective and distributive justice as components of the international rule of law helps us see the cry ‘take back control’ as ‘indignation’ about the (social) injustices and global inequality that international institutions (re)produce and as a cry for just international institutions. Koskenniemi’s Foreword rightly asks: what is ‘required of us’? I suggest that we should understand the current backlash as an institutional crisis as well as a crisis of selfhood. Reading Grotius may encourage us to include critical language of distributive justice in our ‘bricolage’ to address ‘legitimate popular grievance’ about the international rule of law and address the human desire for just institutions also at the international level.

The Politics of Transnational Law

This chapter highlights several traits of institutional design that characterise the current discontent among states with liberal institutionalist governance. It discusses these traits with states’ critiques of transnationalism. The chapter analyses how states respond to such frustration by developing policies and practices designed to reclaim sovereign manoeuvrability by circumventing or creatively navigating these same international legal structures. This development draws on the very same transnational structures and modus operandi as foreseen by transnational law scholars. The chapter argues that in contrast to the predictions of transnational legal scholarship, this form of transnationalism is increasingly used as a managerial tool to limit the impact or development of more traditional and liberal forms of international law. The expansion and increased institutionalisation of international law itself seem to have created the structural premise for this type of politics of international law. In sum, international law has developed to a point where some states feel threatened by their own creation.

Drone Warfare in Counterterrorism and Normative Change: US Policy and the Politics of International Law

The use of Unmanned Aerial Vehicles (UAVs) or drones in counterterrorism has changed the face of warfare and is challenging international law on a number of levels. This article assesses some of those challenges in the context of the Obama administration’s justifications to use drones for targeted killing. It focuses on the US as a norm entrepreneur that purposefully works to alter prevalent norms related to the use of drones in counterterrorism efforts. The article analyses normative developments and the meaning-in-use of existing legal provisions that are invoked to justify US policy in this area. By focusing on norm entrepreneurs, this article moves away from purely structural accounts of normative change towards a stronger emphasis on actors and the role of agency. Rather than understanding US drone policy as violating international law, this article argues that the Obama administration was acting as a norm entrepreneur in its counterterrorism efforts, aiming to change the meaning of a number of international legal concepts to justify its policy decisions.

Media Spectacles of Legal Accountability in the Reporting of an Official History

In this contribution I consider how the Chilcot Inquiry affects our understanding of international law on the use of force. However, rather than adjudge the effect that the Inquiry process or its Report might have on the final assessment of the legality of the Iraq War, I offer some reflections on the media environment within which legal arguments were and continue to be framed, presented and narrated. Such reflection calls attention to the situatedness of legal debate and the ways in which the question of international law—its prohibitions, exceptions, permissions and application—is always also a question of politics. And that the ‘politics of international law’ is not to be found only on an imagined ‘international plane’...

The politics of international law: the life cycle of emerging norms on the use and regulation of private military and security companies

ABSTRACTThe burgeoning use of private military and security company (PMSC) contractors in the wake of the 2003 Iraq War years has given rise to calls for regulation and oversight of PMSCs. The UN Working Group on the Use of Mercenaries advocates a convention that bans states from outsourcing ‘inherently State functions’, including ‘direct participation in hostilities’, to PMSCs. Others, especially Western states and others behind the boom of the PMSC industry after the 2003 Iraq War, argue that codes of conduct and self-regulation are sufficient to regulate PMSCs. Treaty, principle and policy norms all encompass shared expectations about proper conduct, but treaty norms take form in hard law whereas principle norms are evinced in customary or soft law (or both) and policy norms are evinced in policy statements issued by international organisations and industry bodies. This article hypothesises that norms on PMSCs that are neither puritanical nor overly strong and yet appear to be both normative and concrete are the most likely to be institutionalised by a critical mass of state actors and by the PMSC industry.

Book Review: Edwin Egede and Peter Sutch, The Politics of International Law and International Justice

Book Review: Edwin Egede and Peter Sutch, <i>The Politics of International Law and International Justice</i>

A critical examination of the British municipal court rulings on cases of international immunity: Revisiting the imperatives of politics of international law

AbstractThe interpretation or ruling on international immunity cases are often surrounded by controversies, sometimes leading to inconsistencies. The British municipal court rulings on international immunity cases are not exception, and in fact are embodiments of inconsistencies. The judgements have been consistently inconsistent. The rulings are not just characterized by controversies; they swim in controversies. Perhaps, these inconsistencies have not been more visible than in cases involving granting of sovereign immunity to political subdivisions or federating units. This was the case in the municipal court decision to deny a serving Governor of a state in Nigeria immunity from jurisdiction. The contention of this paper is that these inconsistencies are, primarily or fundamentally, due to susceptibility of British municipal courts to British national interest, and thus, not primarily due to controversial nature of international law. The paper therefore interrogates the interface between international ...

Surabhi Ranganathan: strategically created treaty conflicts and the politics of international law

Surabhi Ranganathan: strategically created treaty conflicts and the politics of international law

Counter-imperial orientalism: Friedrich Berber and the politics of international law in Germany and India, 1920s–1960s

AbstractThe most trenchant critiques of Western international law are framed around the legacy of its historic complicity in the imperial project of governing non-European peoples. International law organized Europe and its ‘others’ into a hierarchy of civilizational difference that was only ever reconfigured but never overturned. But when analysing the complex relationship between international law and imperialism the differences within Europe – as opposed to a dyadic opposition of Europe versus the ‘rest’ – also matter. Within the historical and political constellations of the early and mid twentieth century, German difference produced a set of arguments that challenged dominant discourses of international law by posturing as anti-imperialist critique. This article focuses on the global career of Friedrich Berber (1898–1984), who, as a legal adviser in Nazi Germany and Nehru’s India, was at the forefront of state-led challenges to liberal international law. Berber fused notions of German civilizational superiority with an appropriation of Indian colonial victimhood, and pursued a shared politics of opposition. He embodied a version of German–Indian entanglement which did not abate after the Second World War, emphasizing the long continuities of empire, power differentials, civilizational hierarchies, and developmental logics under the umbrella of international law.

Book review: Strategically Created Treaty Conflicts and the Politics of International Law By Surabhi Ranganathan. Cambridge, Cambridge University Press, 2014. 448pp, £75 (hardcover)

Book review: Strategically Created Treaty Conflicts and the Politics of International Law By Surabhi Ranganathan. Cambridge, Cambridge University Press, 2014. 448pp, £75 (hardcover)

Surabhi Ranganathan. Strategically Created Treaty Conflicts and the Politics of International Law

Surabhi Ranganathan. Strategically Created Treaty Conflicts and the Politics of International Law

A Critical Examination of the British Municipal Court Rulings on Cases of International Immunity: Revisiting the Imperatives of Politics of International Law

A Critical Examination of the British Municipal Court Rulings on Cases of International Immunity: Revisiting the Imperatives of Politics of International Law

Perspectives of development of conception of international law policy. Part 2

Article is devoted to discussion on issue of applicability of the notion ‘law policy’ to the international law and the international legal system. Much attention is paid to comparison between such notions, as law policy, politics of international law, progressive development of international law. Author analyzes the international law policy as an objective international legal phenomenon, showing its aims and subject structure. Article gives proof of conclusion that the conception of international law policy should be based not only on giving a more precise definition of international law nature but also on analysis of current problems of international law development closely associated with fragmentation of the latter.

The International Legal Policy in the Field of Technology Transfer and the Intellectual Property Rights: Some Controversial Issues

The study examines the one of the dramatic collisions of international technology transfer, such as the tension between aims of technology transfer, on the one hand, and protection of intellectual property rights (IPRs), on the other hand. Authors review comprehensively the dual role of intellectual property (IP) in the international technology transfer and strive to address some of issues concerning the essence of global complex policy in area of technology transfer and of the IPR protection based on international legal instruments. The present study also deals with analysis of directions of the politics of international law in appropriate area. Authors have stressed that is important to understand that efforts of the world society to establish the international regime of technology transfer on fair and equitable terms during last 50 years presume that this regime is in conjunction with issues on the protection of IPRs. Finally, the intersecting of mission of internationally transferred technologies and aims of the IPRs protection demands a new steps of international cooperation designed to reconcile the interests of various groups of countries, interests of right holders and users of technologies. The basis of possible reconciliation is numerous provisions of international legal instruments providing for the balanced relation between perspectives of technological progress of society and interest of holders of exclusive rights. DOI: 10.5901/mjss.2015.v6n5s1p177

Perspectives of development of conception of international law policy

Article is devoted to discussion on issue of applicability of the notion ‘law policy’ to the international law and the international legal system. Much attention is paid to comparison between such notions, as law policy, politics of international law, progressive development of international law. Author analyzes the international law policy as an objective international legal phenomenon, showing its aims and subject structure. Article gives proof of conclusion that the conception of international law policy should be based not only on giving a more precise definition of international law nature but also on analysis of current problems of international law development closely associated with fragmentation of the latter.