International Law Scholars Research Articles

The Genocide Case against Israel: from the Victim’s Side to the Defendant’s Bench?

Abstract This article presents a scholarly analysis of the United Nations International Court of Justice’s (icj) preliminary rulings issued in January, March, and May 2024 regarding South Africa’s genocide case against Israel, initiated in December 2023. The study critically examines these initial rulings, identifying the compelling arguments presented by the Court and comparing it to some other recent cases such as Nicaragua v. Germany. Employing a legal analytical methodology, the piece argues for the significant judicial implications of the icj’s preliminary findings and offers a tentative forecast for the expected main judgment. It further delves into the proper qualification of the crime of genocide as well as its characterization as a human rights law violation, providing the author’s perspective on the seriousness of the genocide allegations from both sides involved in this critical case. This study contributes to the existing scholarly literature on the Israeli-Hamas War and the broader Israeli–Palestinian conflict, emphasizing judicial aspects and the substantive part of international criminal law, specifically the crime of genocide. It aims to serve as a valuable resource for international law scholars, legal practitioners, academics, and students engaged in the complexities of state and individual criminal responsibility within the context of international law.

The “Great Powers” and The Formation of International Law

Abstract The US, Russia, and China – the current “Great Powers” – often disagree over primary rules of international law, such as the scope of self-defence in response to an armed attack. Such disagreements over primary rules can often be explained in traditional realist fashion, because powerful States generally interpret international law in a manner that reflects and advances their interests. But that is not always the case. In some situations, Great Power disagreements over primary rules are driven less by realpolitik than by very different understandings of the formal sources of international law – the sources that determine what qualifies as a primary rule. Most comparative international law scholarship has focused on how the Great Powers view primary rules, ignoring how the US, Russia, and China disagree over the formal sources of international law. This article focuses on disagreements in the latter category. After a brief introduction in Part I, Part II explains how the US, Russia, and China perceive the formal sources of internal law in abstracto – which they privilege and why, methodological inconsistencies in how they understand and apply a particular source, and so on. Part III then examines four areas of international law in which different perceptions of the formal sources have a significant effect on how the US, Russia, and China perceive the primary rules: the jus ad bellum, the jus in bello, arms control, and cyberspace. Some concluding remarks follows in Part IV.

Training Between International and Domestic Law Regarding the Superiority of Each Person’s Conditions

International law differs from domestic law in terms of scope, jurisdiction, and implementation mechanisms. It also has direct binding force on individuals and institutions within the state. Domestic law is characterized by the presence of a constituent authority that drafts the constitutional document, a legislative authority that drafts ordinary laws, and an executive authority that drafts regulations and instructions. The importance of this study lies in the distinction between international and domestic law. We do not find a significant difference in the gradation of its rules despite the absence of those three authorities that are known to exist in domestic law. If they exist, they are at least not in the usual form at the national level. However, there is a problem that has always taken up a large space and a difference between international law scholars and judicial rulings in defining these rules. The Vienna Convention on the Law of Treaties did not address this type of rule and was satisfied with referring to it only. However, we see that the International Court of Justice avoids, in its decisions and advisory opinions, resorting to naming the rules of jus cogens directly, unlike the Vienna Convention on the Law of Treaties of 1969. Perhaps the reason for this is due to two things: the first is caution in disclosing the existence of these rules, and the second is the commitment to neutrality towards these rules. Therefore, we find the court referring to these rules on more than one occasion, but using different terms to refer to the same meaning that the rules of jus cogens refer to.

Introducing the CEDAW ROCS dataset: A Dataset on the United Nations Treaty the Convention on the Elimination of All Forms of Discrimination against Women––Reservations and Objections of Committed States

Abstract The Convention on the Elimination of All Forms of Discrimination Against Women Reservations and Objections of Committed States (CEDAW ROCS) dataset provides a rich source of information about the United Nations CEDAW treaty from 1979 to 2022. For the first time, all the signatories, ratifiers, reservations, and objections to CEDAW, quantitatively are visible in one place. The dataset provides details about which states objected to which types of CEDAW reservations, when states withdrew CEDAW reservations, and the most prevalent reservations on CEDAW to date. The data are available in country year format. This research note discusses the motivation for the creation of this dataset and discusses coding decisions for key variables. Descriptive statistics and illustrations of the data are provided. The dataset's capabilities for current human rights and international law scholars are also discussed.

Why Do States Adhere to the Sustainable Development Goals?

AbstractThe rationale behind state support for, and obedience to, normative rules and obligations has long been a topic of international law scholarship discourse. What has yet to be fully established, however, is why virtually all states have agreed to adhere to a seemingly novel global paradigm with ambitious yet non-binding objectives – the United Nations 2030 Sustainable Development Goals (SDGs). This article identifies six factors as contributing to the influencing power of the SDGs – namely, the role of law, particularly inter- and transnational law, the legitimacy of the framework, the notion of reciprocity, reputational concerns, national self-interest, and the moral duty to address the shared global challenges of sustainable development.By exploring their strengths and limitations through several theoretical frameworks (including Harold Koh's theory of transnational legal processes, Thomas Franck's theory of legitimacy, and Ryan Goodman and Derek Jinks’ three mechanisms of social influence), this article argues that the combination of these factors motivates voluntary state commitment, reporting, and cooperation under the SDG framework and that, overall, the SDGs offer a versatile lens to explore the different motives for state adherence to a soft law framework in the inter- and transnational legal spheres.

Resistance and Change in Form and Content of International Law: A Third World Perspective on Commodity Form Theory of International Law

Can Marxists, especially in the Third World, use international law for progressive social change? Responding to the Soviet Union's context and its jurisprudential challenges in constructing socialism, Pashukanis's seminal work on commodity form theory is nihilistic, assuming the very nature of form of international law as bourgeois with limited possibilities of radical change as its new content. European Marxism, on the other hand, in its context of revolutionary defeat and consequent postmodernist pessimism of cultural Marxism, either relies on Pashukanis's nihilistic position or a pragmatist and realist posture, insisting on staying within the law's bourgeois form and being content with social democracy. As opposed to this, Third World Approaches to International Law (TWAIL) scholars, while exploring the imperialist nature of international law and representing one variant of Third World Marxism, have been more optimistic, wanting to use international law to restrain and shield against powerful Western states, i.e., they believe that the content of Third World resistance can change the form of international law. This article deconstructs this class “content” of international law in the understanding of TWAIL and shows the postcolonial Third World states, and even in the yet to be independent states, were dominated by their dependent local elite, which had compromised by the ex-colonizers and had started blocking radical structural changes in Third World. Soon, the target of imperialism and the Third World elite became radical movements in the Third World, and this struggle of the marginalized shaped international law. Therefore, relying on the radical tradition of Third World Marxism and taking the right of self-determination as an example, this article argues that both the content and form of international law were simultaneously used, subverted, and changed in a dialectical and dynamic way by the resistance of the people of the Third World.

Building An Abolition Movement for International Criminal Law?

Abstract International criminal law is a carceral system, which responds to mass atrocities by holding some individuals criminally responsible for these events and then, generally, imprisoning those individuals. I ask what alternative responses might be envisaged, and if we can build a carceral abolitionist movement for international criminal law. Such a movement would refuse imprisonment and policing as the main responses to mass atrocity, and instead would seek to understand the social causes and conditions that cause such mass atrocity, and also how (and why) criminal law has become the preeminent ‘legitimate hand of justice’. In this article, I attempt to bring into conversation two particular intellectual movements: the collective scholarship and praxis of domestic carceral abolition movements; and those critical scholars of international criminal law who have already set out some of the limits and possibilities of the field. I set out the structural conditions of international criminal law, particularly its ideological grounding in neoliberalism and its relationships to race, global capital and colonialism and imperialism, which result in a legal system that criminalizes some and exonerates others. I then particularly examine some tools that already exist for building an abolition movement for international criminal law. These include the defence of duress, transformative reparations and the role of defence lawyers. These tools are admittedly part of the carceral system, and therefore cannot be the key to an abolition movement for international criminal law. However, they may assist us in the short or medium term as we imagine and work towards a better world without the need for a carceral system of international criminal law that relies on police and prisons.

Private international law’s ambivalent humanism

Karen Knop’s fresh reading of James Lorimer’s The Institutes of the Law of Nations (1883) recovered the image of what she termed ‘the private citizens of the world.’ She introduced this figure from Lorimer’s forays into private international law in order to investigate to what extent the attributes of private citizens of the world are restored or refracted through public international law doctrines and theories. But how should private international law re-engage with the private citizens of the world? I caution that, by reference to this familiar figure, one may too easily ascribe either an inherent humanism or an inherent agnosticism to private international law. Neither would be in line with Karen’s critical project. By contrast, I suggest that Karen’s revival of the private citizens of the world should prompt private international law scholars to look carefully into their field’s past and present and reckon with the field’s more ambivalent humanism. This article travels past Lorimer’s writings into the inter-war period to reveal the fragility of sustaining the private citizens of the world via private international law in Europe, Latin America, and the British Empire. It suggests that those historical puzzles at the root of private international law’s ambivalent humanism continue to this day.

Bridging the Gap

Abstract Recent years have seen a new, by now almost normalized, openness towards empirical, interdisciplinary approaches within international law scholarship, in part driven by research conducted within the Nordics. Scholarship that bridges International Law and International Relations has been a key example, promising new insights on how power dynamics shape international law, and how international law in turn constitutes global order. However, interdisciplinary work combining both disciplines has also been met with critique, including accusations of disciplinary hegemony, a priori theorising, and not accounting for international law’s normativity. This article argues that practice theory provides one possible way to address these challenges. Focusing on day-to-day legal practices, especially at the intersections of legal regimes, we identify three examples of particularly promising research avenues: state responses to international legal developments; international lawyers navigating overlapping communities of practice; and data-driven approaches for understanding how legal interpretations are negotiated across different groups of practitioners.

The Blind Men and the Elephant

Abstract What is the role of the social sciences in international law? This article maps how international law interacts with the social sciences, including its concepts, findings, methods, and epistemologies. It provides a first encompassing genealogy of social science references in six renowned international law journals, including the American, Asian, European, Leiden, and Nordic Journal of International Law as well as the British International and Comparative Law Quarterly, by using a corpus linguistic approach that encompasses more than 15,000 documents from 1907 to 2022. Moreover, it explores how structural factors related to the institutionalization and funding of certain strands of social science-inspired international law scholarship have influenced regional and temporal patterns in Europe, Germany, and Australia.

Taking Texts Seriously

Abstract Many international law scholars have found inspiration in quantitative methods of text analysis in recent years. Such methods enable scholars to identify patterns in large quantities of text and challenge pre-existing assumptions about various aspects of international law, how it is developed, practiced, interpreted and applied. Yet, subjecting legal texts to quantitative methods of analysis also comes with notable shortcomings. When treating texts as abstract data in accordance with the logic of data science, researchers often fail to appreciate texts as means of human interaction and communication, thereby diverting attention from terms and meaning to numbers and statistics. The aim of this article is threefold: to offer a lay of the land of the burgeoning empirical legal scholarship that adopts text analytical approaches in its study of international law, exhibit what gets lost when insights from linguistics are ignored, and demonstrate what is gained when they are not.

Examining the Society in Which We Are Educated: Applying Critical Approaches to International Law Research

International law suffers from a lack of diversity. The scholars who are cited by the International Court of Justice (ICJ) write the most widely used textbooks, and those who are recruited by elite organizations are predominantly Western-educated White males. International law discourse sidelines Third World perspectives. In response, Third World approaches to international law (TWAIL) scholarship centers colonialism and the Global North’s entrenchment of economic and political dominance as the raisons d’être for modern rules of international law. Legal research instructors can address the lack of diversity in international law by incorporating TWAIL scholarship and applying critical approaches to international legal research.

Is Legitimate Exclusion Incompatible with the Sovereign Right to Exclude?

Scholars of international law have been increasingly troubled by states’ vast powers and practices of migrant exclusion. There is no doubt that much of this uneasiness is catalyzed by a keen sense of the demands of a basic liberalism at the international legal order's core. Indeed, the increased construction of border walls,1 the continuously widespread use of deportation as a migration control tool,2 and new digital bordering technologies3 have all come under scrutiny precisely because of the challenges they pose to the notion of supposedly universal entitlements, both substantive and procedural, that often appear disabled or overridden when it comes to the treatment of different sorts of migrants. My goal in this contribution is not to add to such legal critiques, but rather to provide the contours of a broader normative argument to rebuke—or at least complicate—what is often called the state's “right to exclude” all or most would-be immigrants. This right is not just standardly assumed in legal and political practice—indeed, standardly viewed as the linchpin of sovereignty—but has also enjoyed sophisticated defense by liberal political theorists.4 The main goal of my argument is to suggest that anyone with basic liberal inclinations—including political theorists, lawyers, and practitioners of politics—should be able to agree that, under current circumstances, granting states a potent “right to exclude” entails deep tensions with basic moral standards of legitimate authority. This is because the deeply entrenched characteristics and historical background conditions of immigration control today tend structurally to push states to violate the appropriate moral conditions of their legitimate authority to enforce immigration restrictions.5 While moving above and beyond legal argumentation, my hope is that the argument may underscore and give further analytical expression to some of the animating concerns of contemporary legal contestations of states’ exclusive powers and practices.

Andemic, Maternity, and Inter- national Lawyers from the Global South: a Call for an Intersectional Approach

What are the impacts of virtualisation on mothers from the Global South who are international law scholars and practitioners? This article argues that it created both challenges and opportunities. It starts with a general overview of international legal academia and states that the Divisible College of International Law is a predominantly male global-north college. Next, it provides some data on the pandemic and how it has affected output in academia in unequal ways by using Brazil as a case study. On that basis, the paper finds that motherhood requires distinct attention as against other performative identities. As a remedy, the paper applies TWAIL feminisms as the approach and framework to revisit this debate and render mothers from the Global South visible, especially in the post-pandemic context. Synthesising these findings, the article finally calls for an intersectional approach, namely a TWAIL matricentric feminist approach to international law.

Foreword: Symposium by the Consortium for the Study and Analysis of International Law Scholarship (SAILS)

Foreword: Symposium by the Consortium for the Study and Analysis of International Law Scholarship (SAILS)

The protection of intellectual property rights in modern conditions

Intellectual property is no less valuable an asset than tangible property, and ensuring its adequate protection is crucial to stimulate innovation and societal development.
 The protection of intellectual property rights should be an important concern for international law scholars, as new innovative ways of violating them are emerging every day with the development of technology. This article provides an overview of the ways in which intellectual property rights are protected in Ukraine. The author highlights the imperfection of national legislation on the protection of intellectual property rights in comparison with the countries of the European Union.
 In particular, the article focuses on the role of intellectual property in the modern digital environment. With the increasing number of digital content and online services, the likelihood of intellectual property rights infringement through piracy and illegal use is growing. The author discusses the problems and contradictions that affect this area today and suggests ideas for further research.
 The article goes on to discuss various mechanisms for the protection of intellectual property rights, including alternative methods of protection, such as mediation, damages, compensation, etc. The author offers recommendations on how to improve the existing rules and procedures to ensure effective protection of rights holders.
 In general, the article emphasizes the importance of ensuring fair and effective protection of intellectual property rights, which contributes to creating incentives for innovation, technology development and economic growth. Knowledge and conscious attitude to the protection of intellectual property rights is of great importance for the progressive development of society. After all, the protection of intellectual property rights can stimulate the exchange of technology and knowledge between countries and organizations, which contributes to scientific and technological progress on a global scale.

Civic Action Against Son Preference in Tirupati, India: Critical International Law Put into Practice?

AbstractIn this paper based on original fieldwork, I seek to contribute to critical scholarship in international law by providing an investigation into the engagement with international law by actors in civil society working against son preference primarily in Tirupati, India. I suggest that the turn to the international legal order by civic actors should be theorized as something else than as merely coming ‘from above’, ‘from below’ or as a ‘translation’ of ‘global’ law to ‘local’ conditions. Instead, I propose that the mobilization of international law within Tirupati’s civil society should be seen as an emancipatory undertaking, an act of resistance with the overarching ambition to reclaim the zenana. In that, I argue, the strategies within Tirupati’s civil society are more appropriately understood as critical international law put into practice.

Benign and Radical Africanization in International Investment Law and Investor-State Dispute Settlement in Africa

Abstract The current Africanization approaches mask some nuances present in current reform efforts of international investment law (IIL) and investor-State dispute settlement (ISDS) in Africa. I adopt the categorization of international law scholarship in Africa developed elsewhere into two trends: contributionist (weak) and critical (strong) scholarship. For reforms in African IIL and ISDS, I relabel this trends benign Africanization representing the contributionist (weak) strand and radical Africanization representing the critical (strong) strand. I argue that African states must focus on wider economic justice engendered in the radical Africanization approach. I propose three lines of action that will implement radical Africanization: first African States, in their reforms, must focus on both extra and intra-African investment; second, the reforms must engage deeply seated substantive issues in addition to the current procedural reforms; and finally, African States must have a real reckoning and engagement with the imperial history of IIL generally and ISDS specifically.

신국제협정: 세 가지 패러다임에 관한 검토와 시사점

From the traditionalist position on international law, a new form of compact agreement, which cannot be classified as an international treaty in terms of academic framework, had long fueled much of contention in politics, international law, and constitutional law. A growing practice of compact agreement had been natural as corresponding with the global compression of international community and rising aspiration of peace regime on the international relations.
 The scholars of international law believe that, regardless of whether the President of the United States is an internationalist or an isolationist, the enactment of international law in the 21st century will be based on more pragmatic rather than formal criteria. It is still true whether or not he is willing to accept or escape the international obligations so that we can more realistically share the powers conferred by the Constitution.
 On the other hand, a constitutional controversy on somewhat mushy yet sophisticated issues on the compact agreements began with the Laurence Tribe's acrimonious criticism in 1990. He argues that a procedure between Congress and the executive branch for the Clinton administration's accession to the North American Free Trade Agreement(NAFTA) is unconstitutional. His criticism pointed out that the NAFTA is unconstitutional since it is contrary to the text and structure of the Constitution. On the other hand, scholars of political science believe that, while a politics is termed as the distribution of values, the new form of compact agreement serves connecting the domestic and international politics as a living organism and must be affirmed from the standpoint of parliamentary politics. The political scientists argue on the necessity and inevitability of a new form of international agreement as pursuant to the nature of political process on informal procedures and parliamentary practices.
 In respect of the theoretical controversy, the paper is devoted to survey what the new form of compact agreement is, what types we can identify and explore the theoretical contest among the disciplines. As the dealings of paper attempt to touch on the core of scholarly assertions as fundamental and philosophical, the endeavor could inculcate the mind of international lawyers within and outside the government by providing a better framework to understand the specific real-world issues. The perception and rationale for the new form of international agreement should differ varying with their academic disciplines from which their thought stems from. The paper ends with implications within the grand scale of jurisprudence.

Cities in a world of regions – Remarks from an international law perspective

Abstract The role of subnational regions is ill-conceived in international law scholarship, which has come to slowly accept the important role that cities can play as international actors. Opening up the academic debate for a perspective on regions promises to develop new insights on the divide of governance functions between international organizations and states, regions and cities. At the same time, the regional focus helps to unearth some of the shortcomings of overly enthusiastic approaches to what cities can do as global actors. International law scholarship has found it difficult, however, to engage with the concept of the region. This is owed, as this Article demonstrates, to difficult definitional issues as well as the informalizing bend of a focus on regional governance, which is hard to square with traditions of formalist thinking in international law. Ultimately, the Article argues that regions can function as a useful prism through which to analyze current governance challenges.