International Law Scholars Research Articles

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.

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.

Strategic Narratives in International Tax Policy Making: BEPS Action 1 and the Stability Argument

Drawing on narrative analysis developed by communications scholars, and applied by scholars of economics and international law and in policy analysis, this article studies action 1 of the Organisation for Economic Co-operation and Development's (OECD's) base erosion and profit shifting (BEPS) project as a policy narrative. The authors outline the role of narrative in international tax policy making and evaluate the probability and the argumentative and material coherence of the OECD's story about the need to ensure the stability of the international tax framework and system. Focusing on the narrative strategy adopted by the OECD to promote its pillar one proposal, the authors assess the likely persuasiveness of the OECD's stability argument—in particular, how it may have influenced the response to the proposal by the members of the Inclusive Framework on BEPS. The authors conclude that the OECD's concern about potentially destabilizing effects of digital services taxes and similar taxes on the international income tax system propagates a global fiscal illusion, and may not sustain long-term support for pillar one by many members of the Inclusive Framework.

Is All Mental Harm Equal? The Importance of Discussing Civilian War Trauma from a Socio-Economic Legal Framework’s Perspective

Abstract In recent years, international law scholars have discussed how civilian mental harm in warfare should also form part of the jus in bello proportionality principle and be balanced to the anticipated military advantage. Yet, these scholars have not proceeded one step further to examine whether socio-economic parameters shaping the individual’s personality, such as education, family ties or the level of income, should be also taken into account as varying variables in this balancing task. This is particularly important given that the particular parameters are tied to the socio-economics rights discourse and the relevant minimal living standards notion developed there. Based on a study we conducted, the article explores whether civilian mental harm should be affected by socio-economic parameters and what this means for the wider role socio-economic rights can play in armed conflicts as well as for the reading of jus in bello along Marxist terms.

Contested Facts: The Politics and Practice of International Fact-Finding Missions

Abstract International organizations (IOs) dispatch fact-finding missions to establish epistemic authority by objectively and impartially assessing contested facts. Despite this technocratic promise, they are often controversial and sometimes even fuel international disputes that challenge the epistemic authority of the dispatching organizations. Although the twenty-first century has witnessed a proliferation of United Nations (UN) commissions of inquiry, they have received surprisingly little attention in international relations (IR) scholarship. How can we explain this trend and the successes and failures of fact-finding missions, which sometimes even backfire on the IO authority? Drawing on IR theories of delegation, epistemic authority, and IO field operations as well as public international law scholarship on commissions of inquiry, this article develops an analytical framework for studying the delegation, implementation, and dissemination of fact-finding missions. It theorizes how and under what conditions international fact-finding missions close or widen credibility gaps and thus help to establish, maintain, or weaken the epistemic authority of IOs. The article illustrates this framework with a case study of the Ad Hoc Working Group on the Human Rights Situation in Chile, sent by the UN Commission on Human Rights in 1974 to investigate allegations of human rights violations and torture. The conclusion outlines a comparative research agenda on international fact-finding missions for IR that contributes to the study of knowledge production in IOs and the enforcement of international norms.

Now You See Them, Now You Don’t

Abstract One intersection between scholarship and practice in international humanitarian law is observable in international litigation concerning violations of the law of war. An interesting example in this regard recently arose in the case by the Democratic Republic of the Congo against Uganda for war-related claims. At the reparations phase, the Court decided not to rely solely on the submissions of the Parties, but to task certain scholars and other experts to answer evidentiary questions. Yet, when the Court’s judgment was issued in February 2022, the role of these experts turned out to be almost negligible, with one significant exception. The overall lesson may be that – while the work of scholars can be highly important for claims practice relating to international humanitarian law – it has its limits, such as when proving and quantifying mass civil injury resulting from a lengthy and complex armed conflict.

Stalin’s Creation & Jackson’s Contribution

Interest in the Nuremberg trials is booming once again. Soviet Judgment at Nuremberg—by Francine Hirsch, Vilas Distinguished Achievement Professor of History at the University of Wisconsin-Madison—is about the Soviet role in the International Military Tribunal (IMT) at Nuremberg. The book has acquired new relevance since Russia’s invasion of Ukraine in February 2022 in violation of international law. Strikingly, not only have the Ukrainian government, and some Western politicians and scholars of international law floated the idea of a new Nuremberg Tribunal, Russian Duma members have as well. Writing recently in Time magazine, Hirsch argued that indicting Vladimir Putin and leading Russian politicians for war crimes, crimes against humanity, and the crime of aggression would require the creation of an ad hoc International Criminal Tribunal or Special Tribunal. Such an indictment, however, should not have a political character, Hirsch points out, but such a trial would offer the possibility of creating a “complete historical record.” A “Nuremberg 2.0” organized by the Russian government would be a “dark alternative” in Hirsch’s eyes. She writes in Time magazine: “This would inevitably be a Soviet-style show trial—a kangaroo court that would degrade international law and could taint the meaning of Nuremberg forever.”1 This viewpoint—that the Soviet Union was fixed on political show trials much as the Putin government may be today—is reflected in Hirsch’s book. However, Hirsch also suggests that international criminal trials always have a political character or partisan interest that must be considered ambivalently: in a positive light, because there is a didactic goal in coming to terms with the past through criminal proceedings; and in a negative light, because impartiality is questionable if the crimes of only one warring party are tried.