International Law Scholars Research Articles

The International Law Scholarship in Central Asia: New Voices

The International Law Scholarship in Central Asia: New Voices

Analyzing the Compatibility of the Remedial Right of Secession with Regard to the Nagorno-Karabakh Conflict

An evolving concept in the realm of international law is the right to remedial secession. Even though this concept has not been completely embedded in customary international law, it is being taken into account as a de lege ferenda (new law) and human-oriented right by scholars of international law. In order for the right of remedial secession to materialize, at least four criteria must be met, namely the existence of a specific group of "people" deemed likely to benefit from secession; that this people is the victim of extensive and long-term persecution and harassment; the impossibility of coexistence between the seceding group and the state encompassing it; and the recognition of such an entity by a minimum number of members of the international community. The Nagorno-Karabakh conflict satisfies the first three criteria, but the enclave is not recognized by any sovereign state or international governmental organization. In light of constructivist theory regarding the "social construct of political realities," including "statehood," as well as the on-the-ground political realities, it appears that the status quo, that is, the de facto independence of Karabakh without international recognition, will persist in the future. It appears that the geopolitical changes that took place in Karabakh after the 2020 war will not resolve the legal impasse. The present paper, which is based on a descriptive-analytical method, investigates the compatibility of remedial secession criteria with regard to the Nagorno-Karabakh conflict.

Reflections on Chinese Scholarship and Perspectives Regarding International Law - The Rise of China and International Law: Taking Chinese Exceptionalism Seriously (Law and Global Governance Series). By Congyan Cai. New York: Oxford University Press, 2019. Pp. xvi, 348. Index. - Guoji Fa [International Law]. 6th ed. Edited By Cheng Xiaoxia and Yu Mincai. Beijing: Zhongguo Renmin Daxue Chubanshe [Renmin University

Scholarship in the discipline of international law may take different forms. It may deal systematically with general practice in a comprehensive way, resulting in a textbook or treatise that is a culmination of long years of teaching, research, and learning. It may examine specific topics of international law in an empirical, historical, and analytical exercise of intellect and reach considerable depth in understanding the topics, culminating in a monograph. Or it may focus on issues of narrow scope in an article, which, of limited size, is suitable for publication in a journal and yearbook. This review focuses on the public international law scholarship in all three forms published by Chinese scholars in the past few years, although the nature of a review necessarily limits the number of publications selected for review. The plan is to take stock of the mainstream thoughts and methods through reviewing the selected publications. The term “international law,” meaning public international law, is used throughout this review for sake of convenience.

Introduction: International Law and Inequalities

Equality is both a premise and a promise (or at least much lip service is paid to such) of today’s international law. Customary international law and instruments such as the United Nations Charter, the Universal Declaration of Human Rights and other foundational treaties of the multilateral system are premised on the equality of states, the right to self-determination and the fundamental equality of human beings. With the era of decolonization, international law also became a battleground for material equality.1 In the wake of the 2008 financial crisis, (economic in-)equality once again entered the limelight in a number of disciplines, not as a premise or promise but as a challenge. In the field of international law, Third World Approaches to International Law (TWAIL) scholarship had already been pushing equality to the centre of attention. There is good reason indeed to subject the relationship between international law and (in)equality to critical interrogation.

THE INFLUENCE OF EUROPEAN CHARTER OF LOCAL SELF-GOVERNMENT ON THE DEVELOPMENT OF UKRAINIAN MUNICIPAL LAW

Ukrainian State has made its historic choice in favor of European integration. The basic European values, of course, include developed local self-government, recognized and guaranteed by the state authorities. The European Charter of Local Self-Government has been the main European standard to which Ukraine has committed itself to recognizing and complying in recent decades. The European Charter of Local Self-Government, adopted by the Council of Europe on 15 October 1985 as a result of many years of work by various European bodies, remains as the main international legal document which sets standards for the organization of local government on the basis of local self-government. Theoretical views on legal nature of the European Charter of Local Self-Government from the standpoint of various branches of law are summarized, legal problems of the Charter implementation are identified and ways to overcome them are outlined. Level of municipal, administrative and legal culture, can be used for further research in this area and for educational purposes by pupils, students, local government officials, civil servants, deputies of local councils. Based on the sources and scientific literature we have studied, it can be argued that the European Charter has a multifaceted legal nature and is the subject of research by scholars in international, constitutional and municipal law which identifies national models of local self-government of the states that ratified it. For Ukraine, the Charter is a vector of further transformations of the local government system in the direction of building capable local selfgovernment.

Consuming International Law: Towards an Experimental Research Agenda for Understanding the Effects of Corporate International Humanitarian Law Violations on Consumer Buying Behavior

AbstractThe focus of international humanitarian law scholarship, and that of international law more broadly, has traditionally taken a state-centric focus, for good reason. Moreover, the age-old question of “does international law work” is explored thorough the rubric of state and, more recently, corporate-level compliance. Such endeavors, however, overlook a set of participants in international law: The individual. Diffusion of international law norms through the general populace is a valuable goal in itself, but by leveraging their decision-making as consumers, it may also play an important role in inducing greater compliance by companies and states. This is acknowledged by the proliferation of consumer boycott campaigns, country-of-origin labelling requirements, and increased demands for corporate transparency. However, little is known about whether international law influences consumer choices. Using international humanitarian law as an illustrative example, this article contends that international legal scholarship should be expanded to include the consumer within its ambit, and that one promising pathway to do so is through greater uptake of the methodological approaches and insights offered by behavioral economics.

The boundaries of religion in international human rights law

Intergovernmental institutions constitute “ecological” settings in which international human rights laws and norms are developed and shaped over time. Yet understandings of these settings remain limited. Notable feminist scholars of international law have argued that uncritical reliance on gendered dichotomies—such as objective/subjective, legal/political, and binding/nonbinding—has stunted knowledge of these spaces. I extend this critique by arguing reliance on yet another gendered dichotomy—the secular/religious—has further limited knowledge in this area. Moving past this unreflective reliance provides needed space to identify previously unrecognized ways supposedly local and global factors intersect to shape human rights norm-making within intergovernmental legal institutions. I demonstrate this using data collected as part of a qualitative study that examined how UN officials who work with women’s rights conceptualize the meaning of religion and its relationship to the human rights legal standards they work to interpret, monitor, and advance.

Jeff Handmaker and Karin Arts (eds), Mobilising International Law for ‘Global Justice’

This collection of work, edited by Jeff Handmaker and Karin Arts, addresses the question of how less powerful actors, principally civil society and international lawyers, can play a more impactful role in the quest for ‘global justice’, by engaging with the law in a variety of ways.1 The chapters showcase a diverse range of topics and methodologies. Through a series of case studies, the book aims to provide a number of strategies for these actors to realise the goal of preventing impunity for breaches of international law. In doing so, the book illustrates that it is possible for civil society and international lawyers to effect positive change in State-centric international legal institutions. As international legal institutions themselves are incapable of realising global justice, ultimately, this book provides some guideposts and examples of the creativity that is required for international lawyers and civil society to positively influence international justice. Part one of the book sets out the theme that in order for international lawyers and civil society to effect global justice, the many vocabularies of international law will have to be understood and utilised. This overarching theme is established by renowned international law scholar, Martti Koskenniemi, in the first substantive chapter. Part two illustrates this point through several empirical case studies. Part three provides several examples in which international lawyers and civil society actors sought to incorporate international law on a local level. The book sets an ambitious task, as the editor’s note in the introduction:

Environmental norm diffusion and domestic legal innovation: The case of specialized environmental courts and tribunals

AbstractAs international environmental law grows decentralized, it is increasingly important to understand how norms promoting new environmental law institutions diffuse. This article identifies the actor classes that are promoting a norm supporting the establishment of specialized environmental courts and tribunals. It first surveys existing literature on environmental and institutional norm diffusion for foundational insight. Using document review, expert surveys and elite interviews, the article identifies key actors who have sought to promote environmental court establishment. The findings affirm that environmental courts have been promoted by widely recognized agents of environmental norm diffusion, including intergovernmental organizations, regional organizations and nongovernmental organizations. However, the results also emphasize that global environmental norms reflect active engagement by domestic judges, courts and judicial networks. This finding holds broad theoretical relevance for legal transfer and norm dynamics research in global environmental governance. First, while domestic judges are widely recognized for implementing international environmental legal norms and contributing to the governance of specific environmental regimes, this study demonstrates a case where domestic judges' norm entrepreneurship has actively supported the global diffusion of an emergent institutional norm. Second, while institutional actors including intergovernmental organizations, regional organizations, nongovernmental organizations and judicial networks are known to directly advocate new environmental institutions, this article emphasizes that they also catalyse normative dialogue, intentionally facilitating exchanges among domestic judges and actors. Collectively, these insights support ongoing research examining what values domestic environmental courts may reflect and how domestic judges and courts support environmental norm diffusion, broadly. Finally, the interdisciplinary nature of these findings underscores the benefit and practice‐relevance of further integrating norm diffusion scholarship in international environmental law and global environmental politics.

Remarks by José Alvarez

The Hudson Medal is given for “outstanding contributions to scholarship and achievement in international law.” For many of us, Lori is the personification of the American Society of International Law. The essential elements of her biography are deceptively simple. She grew up in California, entered Yale College in the fall of 1970, in only the second year of coeducation there, where she majored in Russian and East European studies—streaking through the place in only three years and graduating summa cum laude. She received her JD three years later from Yale Law School and stayed in New Haven to clerk for Judge Jon O. Newman. She served as an attorney-adviser in the U.S. Department of State from September of 1977 through January of 1981 and then worked at Sullivan & Cromwell through 1984. She has been at Columbia Law School ever since.

Chilling and Warming Effects on the Production of International Law Scholarship

Chilling and Warming Effects on the Production of International Law Scholarship

Limits to the Jurisdiction of States in Private Law Matters under International Law

For decades, public and private international law scholars have debated whether the customary international law on the jurisdiction of States applies to private law. In this article, I argue that it does. Subsequently, I analyse the content of the customary law on jurisdiction of States in different fields of private law with an emphasis on tort law.

Paradise of territoriality lost: rethinking extraterritoriality in administrative law

Traditionally, the scholarship of administrative law has paid only very limited attention to the phaenomenon of extraterritoriality. Hereby, the scholarship has reflected the theoretical considerations concerning the sovereignty of the State, which have implied that administrative authorities execute their functions exclusively in the territory of the State. At the same time, the scholarship of international public law has traditionally acknowledged that – as based on a corresponding international agreement – a State may allow the administrative authorities of a foreign State to execute certain functions in its own territory. This article aims to reconcile these two approaches, demonstrating that the phaenomenon of extraterritoriality has emerged to represent an integral part of the system of administrative law in various jurisdictions. This article also argues that this perception of administrative law actually fails to represent any new feature, but is based on traditional concepts existing in the public law of Europe. Thus, extraterritoriality must be considered as a part of the ius publicum europaeum commune.

Pandemics, Planetary Health and Human Rights

Global solidarity and international cooperation are key to addressing compound global crises – such as climate change, biodiversity loss and pandemics – effectively. It remains unclear, however, to what extent, and on what legal basis, solidarity and international cooperation constitute legal obligations of States under different branches of international law. Questions also persist about the extent to which and how States’ obligations of international cooperation are differentiated; what common and differentiated obligations entail in practice for States at different levels of development; and how potential conflicts between different types of obligations (e.g. territorial and extraterritorial human rights obligations) must be addressed. This article seeks to unpack these questions from the perspective of international human rights law, giving due consideration to relevant principles and provisions of international environmental agreements. It builds on international law scholarship that has explained how and why the provisions of the UN Charter should be interpreted as creating genuine membership duties, including an obligation to cooperate to realise human rights. Further, it builds on more recent scholarship that has explored how this obligation applies in connection with climate change and biodiversity, and on a nascent body of scholarship on the covid- 19 crisis, human rights and international law. The aim of the article is to explore the role of the principle of solidarity and the duty to cooperate to realise human rights in devising more effective and holistic responses to compound global crises.

The Poetics and Politics of Custom: Law, Literature, and Time

The Poetics and Politics of Custom: Law, Literature, and Time

Behavioural Compliance Theory

Abstract Following in the wake of its social science siblings, international law scholarship is experiencing a ‘behavioural turn’. One particularly fruitful area in which to explore the utility of behavioural insights is compliance. The contributions to the present symposium represent some of the first efforts to explore how psychological influences may shape the compliance decision-making process and to study the theoretical and practical advantages offered by pursuing a behavioural analysis of compliance. This essay addresses several cross-cutting issues of importance. First, it outlines the epistemological stance that is implicit in behavioural approaches to compliance. It draws a parallel with economic theory, suggesting that the persistent dominance of rational choice theory in that field belies a teleological difference between international law and economics. The essay then turns to suggest how psychological influences both interact with and build on the material and normative considerations that are posited in existing theories to determine actors’ compliance-related behaviour. It continues to address the limitations of adopting a behavioural approach to compliance, from both a methodological and normative point of view. The final section provides a brief introduction to the pieces included in this symposium and outlines avenues for future research.

The international law of jurisdiction: A TWAIL perspective

AbstractThe concept of jurisdiction is a relatively undertheorized category of international law. Mainstream international law scholarship advances an ahistorical and asocial account of the rules of jurisdiction in international law. The present article contends that any serious understanding of the categories and rules of jurisdiction, in particular that of extraterritorial jurisdiction, calls for deep appreciation of the evolving material structures over time. It argues that the key factors that have influenced the evolution and development of the doctrine, rules, and practices of jurisdiction are the emergence of the modern state, capitalism, and imperialism. In order to appreciate this contention there is a need to undertake on the one hand a genealogical analysis of modern state and capitalism and on the other hand problematize the categories ‘territory’ and ‘extraterritorial’. The internal relationship between capitalism and imperialism has meant that, despite the territorial organization of the international system, a process of harmonization of legal rules has taken place across geographical spaces in both colonial and postcolonial eras. The outcome is a critical loss of policy and legal space for nations of the Global South. In the colonial era the outcome was achieved through legislation in the instance of colonized nations and through capitulation regimes in the case of semi-colonies. The strategy of advanced capitalist states in the postcolonial era for achieving harmonization of laws has been multi-layered and multi-dimensional. The article concludes by touching on two models of reform of the rules and practices of jurisdiction viz., liberal and subaltern internationalism.

Situating the Inter-American Human Rights System in the Oscillation of International Law

This article considers the Inter-American Human Rights System (IAHRS) as a response to the general assessments of some critical scholarship on international law. It employs the concept of “oscillation of international law” to organize different views of the international human rights and environmental law (IHREL) scholarship, two legal regimes that speak loudest to the IAHRS’ interests. These views are distributed within a spectrum that goes from utopian demands placed on IHREL, to apologist defenses of these legal regimes. I put forward a third strand of critical intervention by framing the IAHRS as a space of political and legal contention that promises to address some of the IHREL’s shortcomings. I caution, however, that, although the IAHRS functions as an enabling platform for subaltern polities that redraw the boundaries of legal meanings, the system may fall short in tackling challenges that are contingent on global capitalist logics.

Modern Money Theory and International Law

This essay examines an emerging epistemological conjuncture between what might loosely be identified as two (primarily) academic camps: economists subscribing to “modern money theory” (MMT) and international lawyers associated with “critical” traditions within the discipline. For many legal scholars, my sense is that their current experience with MMT varies from “I think I have heard of that before” to “that state theory to money that pushes for a universal job guarantee.” And many progressive economists familiar with MMT have not spent a significant time with the insights and sensibility of critical international law scholarship. My aim here is to explore where there might be fruitful collaboration between these communities.

José María Torres Caicedo and the Politics of International Law in Nineteenth-Century Latin America

Abstract The mid-nineteenth century was the formative period of doctrines that dominated international law debates in Latin America until well into the twentieth century. José María Torres Caicedo (1830–89) is one of the least-known international law scholars from those years. Torres Caicedo’s vast experience as a diplomat provided him with a sharp political instinct, which nurtured his academic work about international legal affairs. A look into his writings exposes the politics behind present-day principles, such as sovereign equality and non-intervention. It also reveals the stance of Latin American intellectuals with regard to the Eurocentric notion of the ‘civilized State’. In the field of the law of aliens, Torres was a major influence in the development of the Calvo Doctrine. His contributions to international law are all the more relevant, as historians place Torres as one of the first authors designating Central and South America as ‘Latin America’. This term was closely intertwined with Torres Caicedo’s views on foreign policy and international law.