Understanding Of International Law Research Articles

Inapplicability of the unwilling or unable doctrine in the fight against terrorism: A manifestation of Hegemonic International Law

The emergence of Daesh prompted some States to relaunch the doctrine that would allow the application of self-defence against a non-State actor when the State in which the group is located is unwilling or unable to combat it. Using a classical legal methodology that studies the sources of international law, jurisprudence and the most relevant doctrinal contributions with a critical socio-legal approach, we analyse the lawfulness of this doctrine and its implications in the understanding of international law. We will determine that it is an ambiguous and arbitrary doctrine that does not have sufficient state support to become law and that contravenes the principle of territorial integrity and state sovereignty, as well as the rules of international responsibility of the state. The thesis reflects the pretension of promoting a hegemonic international law.

Community Interest and International Legal Order

Traditional notions about the private nature of the international legal order are increasingly being forced to contend with developments in the elements of public international law. The concept of international social interest is key to understanding these developments and has consequently transformed our understanding of international law. Beginning with an explication of public and private international law and a comparison of the two, this article further examines and classifies the various approaches to the public/private divide in domestic legal theory, arriving at four key elements of publicness common to all approaches: the existence of a community or public; the universality of public institutions with their own boundaries; the hierarchy of norms and institutions and the objectivity of obligations and responsibilities. The social interest and the development of relevant norms in international law can be seen as introducing and strengthening all these elements of publicness within the international legal system. Thus, the social interest is becoming an international public legal order. It is important for our understanding of international law and the future development of the international legal order.

Thailand’s debut in investment treaty arbitration: the curious case of Walter Bau and its lessons for participants in international investment law

Abstract Thailand’s first experience with investment treaty arbitration has not been a pleasant one. Nevertheless, it offers important lessons to States, foreign investors, and arbitral tribunals regarding their respective participation in the process of decision-making. First, States must be meticulous in concluding investment treaties while bearing in mind that their subsequent practice affects the way those treaties are interpreted and applied. Second, foreign investors’ due diligence when making investments and their selection of a suitably qualified lawyer to represent them in arbitral proceedings will both affect the outcome of their case. Third, arbitral tribunals’ understanding of international law is critical for the credibility of investment treaty arbitration and will contribute to its legitimacy—or lack thereof. In fulfilling their role, arbitral tribunals should consider economic realities within the confines of an applicable investment treaty. Furthermore, to determine their jurisdiction ratione materiae and jurisdiction ratione personae for non-ICSID arbitration, they should adopt the single keyhole approach, following the definition of ‘investment’ and ‘investor’ given by the parties as lex specialis and acting in accordance with the principle of procedural economy.

Bias in International Law

AbstractThis special issue looks at how cognitive bias matters to international law. We wish to shed light on the legal frames, labels, and cognitive biases that shape our understanding of international rules, the application of these rules, and outcomes of international adjudicatory processes. Adopting the behavioral approach to international law, we focus on actual behavior rather than assumed behavior of actors taking part in the international legal process. The central idea of this approach is that human cognitive capacities are limited—or bounded—by a variety of cognitive, emotional and social, or group-based biases. Our aim is to explore how these biases operate on the individual, group, and state level in various spheres of international law. This Symposium therefore looks beyond the traditional understanding of international law as applying between states, and focuses on how individuals, as actors in the international sphere, use international law language to influence other people, to create communities, and to shape identities.This Introduction first serves to explain the type of shortcuts we make in our decision-making. This description of biases is followed by an overview of behavioral literature in international law that has thus far examined how bias operates in different aspects of international law—in relation to sources, to compliance, and individuals taking part in the international legal process. We then turn to introduce the Symposium and explain its contribution to the existing literature.

The Stuff of International Law

Abstract This review essay addresses the call for a ‘material turn’ in international law announced with the publication of International Law’s Objects. It will engage the book’s methodological forays into a material culture studies approach to international law by analysing the theoretical positions of the introductory essays. It will do so, in part, by reviewing the various goals enunciated, including a revitalization of what the editors see as a dusty, text-centric discipline, as well as their hope to broaden the range of international legal study. It will do so also by engaging material culture studies in source disciplines, such as anthropology and archaeology. The review essay will then analyse four of the case studies of objects, how they work with their chosen objects and what the contributors add to our understanding of international law with their confrontation. The essay will offer the potential goals of using material culture study by proposing that international legal study is advanced by enhancing our apprehension of the lived experience of international law through an engagement with objects and by a linked opening up of all the senses to bring us a fuller apprehension of the workings and impact of international law.

The Role of Immigration and Employment Law as a Media for Licensing and Supervision of Foreign Workers in the Republic of Indonesia

Today, society is being heralded by the entry of foreign workers into Indonesia which will later rob domestic jobs. If we have understood and mastered the discussion material regarding the convention; then the direction of international law is clear as a complement to enforce the law that applies to foreign workers in terms of immigration. ASEAN and ACFTA are a concrete example of the involvement of foreign workers in a place. For this reason, an understanding of international law is needed; how an agreement applies and what is contained in the agreement. Immigration, employment and international law are interrelated. They cannot stand alone. These three things will form a new order as well as how the role of immigration and manpower law in explaining how foreign workers should be employed.

Community Interest and the International Public Legal Order

Traditional ideas about the private nature of the international legal order are increasingly being forced to contend with the development of public legal elements at the international level. The notion of the international community interest is key to understanding these developments and, as such, has transformed our understanding of international law. There are many different approaches to the public/private distinction in law, broadly categorised into relational, public authority, and interest-based approaches. These can be reduced to four key elements of publicness: the existence of a community or public; the universality of the public regime in question with its own boundaries; normative and institutional hierarchies; the objectivity of obligation and responsibility. The development of the community interest and related norms of international law can be seen to have introduced and strengthened all of these elements of publicness within the international legal system. It is thus on its way to becoming an international public legal order. This has important implications for our understanding of international law and the future development of the international legal order.

After International Law: Anthropology Beyond the “Age of Human Rights”

This essay examines the ways in which anthropologists have tracked the rise and fall of international law after the end of the Cold War. It argues that anthropological research has made important contributions to the wider understanding of international law as a mechanism for social and political change, a framework for protecting vulnerable populations, and a language through which collective identities can be expressed and valorized. Yet, over time, international law has lost many of these expansive functions, a shift that anthropologists have also studied, although with greater reluctance and difficulty. The essay explains the ways in which particular categories of international law, such as human rights and international criminal justice, grew dramatically in importance and power during the 1990s and early 2000s, a shift whose complexities anthropologists studied at the local level. As the essay also explains, anthropological research began to detect a weakening in human rights implementation and respect for international legal norms, a countervailing shift that has broader implications for the possibilities for international cooperation and the resolution of conflicts, among others. At the same time, the retreat of international law from its highpoint in the early post-Cold War years has given way to the reemergence of non-legal strategies for advancing change and accounting for past injustices, including strategies based on social confrontation, moral shaming, and even violence.

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.

The Psychology of International Law: An Introduction

Abstract Public international law scholarship opens evermore to social science theories and methodologies, but the implications of cognitive research and behavioural economics have not been systematically explored, even though they have been successfully applied to domestic legal issues and are increasingly used in public policy and regulation. In this symposium, we aim to fill two research gaps: first, international law and economics and international political economy rarely use behavioural insights, while behavioural law and economics lacks international dimensions, and, second, international political psychology sidesteps the importance of international norms. This introduction surveys the main psychological angles employed in the articles of the symposium as well as the difficulties envisioned in this research agenda of applying psychology to international law and using experiments for the study of international law. These difficulties notwithstanding, behavioural studies have generated many insights that have the potential to greatly enrich our understanding of international law.

International Law within the Palestinian Legal System: A Call for Granting Human Rights Treaties a Special Constitutional Status

The hierarchical status of international treaties within the domestic system of states varies from one state to another depending on each state’s approach and understanding of international law. While most states do not differentiate between the constitutional hierarchical status of international human rights treaties and other types of international law treaties, some progressive states accord human rights treaties a special constitutional status. While the legal system in Palestine does not establish the constitutional hierarchy of international treaties within Palestine, the Palestinian Supreme Constitutional Court (SCC) dueled upon the issue recently. This article provides a critical review of the SCC’s decisions while advancing the argument that international human rights treaties should be accorded a special constitutional status within the Palestinian legal system.

Human Rights in War: On the Entangled Foundations of the 1949 Geneva Conventions

AbstractThe relationship between human rights and humanitarian law is one of the most contentious topics in the history of international law. Most scholars studying their foundations argue that these two fields of law developed separately until the 1960s. This article, by contrast, reveals a much earlier cross-fertilization between these disciplines. It shows how “human rights thinking” played a critical generative role in transforming humanitarian law, thereby creating important legacies for today's understandings of international law in armed conflict.

Fascism, Imperialism and International Law: An Arch Met a Motorway and the Rest is History . . .

AbstractWhat would happen to our understanding of international law and its relationship with violence if we collapsed the distinction between our supposedly post-colonial ‘present’ and its colonial ‘past’; between the sovereign spaces of the twenty-first century global order, and the integrated, hierarchical space of fascist imperialism? I respond to this question through an investigation into the physical contours of a precise ‘imperial location’: 30°31′00″N, 18°34′00″E. These co-ordinates refer to a point on the sea-edge of the Sirtica that is occupied today by the Ra's Lanuf oil refinery, one of Libya's three most important such facilities. In the late 1930s, however, during Libya's period of fascist colonial rule, this was the point at which a state-of-the-art motorway, the Via litoranea libica, was crossed by a giant triumphal arch, the Arco dei Fileni. Through a chronotopic reading of the temporal, spatial and interpellative aspects of this point, its architecture and its history, I suggest that fascist lawyers, officials and intellectuals accepted a horrifying truth about the relationship between international law and violence – a relationship that twenty-first century doctrinal international law is loath to confront, concerning the inherently expansionist logic of the sovereign state, and the inevitably hierarchical ordering of the ‘international community’ which stems from it.

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’...

Seeking Deliberation on the Unborn in International Law

International human rights instruments and jurisprudence radiate an understanding of international law as also serving to protect fundamental rights and the interests of the individual. The idea that human rights provide a credible framework for constructing common norms among nations and across cultures is both powerful and attractive. If the protection of being human serves as the common denominator in human rights discussion, and if human rights are deeply inclusive, despite being culturally and historically diverse, then a failure to deliberate on the legal status and protection of the unborn may be seen as a failure to extend respect where it is due. Such deliberation is required, irrespective of the fact that jurisprudential debate on the unborn and on abortion is complex and controversial. The protection of human life, well-being, and dignity are essential aims of the United Nations Charter and the international system created to implement it. Although there have been collective efforts resulting in substantial development in international human rights law, the international community has not approached the legal status and protection of the unborn as a matter of urgency – this, while much has been accomplished regarding women, children, animals and cloning. This article therefore argues for the development of a deliberative framework so as to further the recognition (not necessarily in an absolute sense) of the unborn in international law, bearing in mind that opposition to abortion does not of itself constitute an attack on a woman's right to respect for privacy in her life. The article also sets out what such deliberation on the legal status and protection of the unborn entails, against the background of a procedurally-rational approach.

Navigating the Legal Landscape between the General and the Specific: General Concepts as Tools of Legal Reasoning

The common practice of using general concepts as tools in legal reasoning is bound to raise questions concerning the relative importance of the general and the specific for the understanding of international law. To illustrate, this article uses two judgments handed down by the icty Trial Chamber. While for both judgments, the Chamber inferred from human rights instruments an alleged general concept of torture, which it then brought to bear on its understanding of the prohibition of torture contained in the laws and customs of war, it used the concept differently. The question that this article asks is whether this difference of approach can possibly be explained so as to reconcile the two judgments. Two mutually exclusive explanations are suggested. As argued, choosing between them presents a dilemma. The first explanation prompts us to accept the occurrence of irreconcilable conflicts between different jus cogens rules. The second explanation commits us to an unacceptably broad understanding of the jus cogens prohibition of torture.

The International Rule of Law - Rise or Decline? Points of Departure

The paper undertakes a preliminary assessment of current developments of international law for the purpose of mapping the ground for a larger research project. The research project pursues the goal of determining whether public international law, as it has developed since the end of the Cold War, is continuing its progressive move towards a more human-rights- and multi-actor-oriented order, or whether we are seeing a renewed emphasis of more classical elements of international law. In this context the term “international rule of law” is chosen to designate the more recent and “thicker” understanding of international law. The paper discusses how it can be determined whether this form of international law continues to unfold, and whether we are witnessing challenges to this order which could give rise to more fundamental reassessments.

Toleration, Synthesis or Replacement? The ‘Empirical Turn’ and its Consequences for the Science of International Law

AbstractOne of the most striking trends in contemporary international law (IL) scholarship is the turn to empirical research methods. Some see this as sign of progress, whereas others call for caution or even show hostility. With a view to the future of IL scholarship, however, all sides in this at times heated debate seem to have considerable problems keeping a clear focus on the key question: What are the implications of this empirical turn in terms of philosophy of legal science, of the social understanding of IL, and, not least, of the place of doctrinal scholarship after the allegedWende? What is needed, we argue, in order to answer this question is not yet another partisan suggestion, but rather an attempt at making intelligible both the oppositions and the possibilities of synthesis between normative and empirical approaches to law.Based on our assessment and rational reconstruction of current arguments and positions we outline a taxonomy consisting of the following three basic, ideal-types in terms of the epistemological understanding of the interface of law and empirical studies: toleration, synthesis and replacement. This tripartite model proves useful with a view to teasing out and better articulating implications of and interrelations between positions. As such the model: i) provides a framework to better situate arguments about the role of empirical studies in IL; ii) helps identify real epistemological stakes in order to overcome ‘trench wars’ – or worse: absence of dialogue and genuine argument; and iii) thus ultimately contributes to the development of a genuine basic science-of-law.

International law is different in different places: Russian interpretations and outlooks

Following the end of the Cold War, it became a widely held belief that, after more than 70 years in exile, Russia would finally “return” to Europe—a sphere to which it had belonged since the time of Peter the Great—politically as well as normatively. Quite early on, however, it became clear that the country was choosing its own way, in ideological terms but also, by extension, in its understanding of international law—what the law of nations is for and what it is about. Lauri Mälksoo’s, Russian Approaches, is, particularly considering its heuristic value, the most informative, interesting and innovative book written to date regarding (i) what the philosophy of international law in Russia is and how it has evolved over time, and (ii) how international law has been reflected in post-Soviet Russian state practice. The essay presents some of the weaknesses in Mälksoo’s answers to these questions, including the disproportionate weight given to some explanatory factors and, by extension, the omission of others. It also argues, inspired by Martti Koskenniemi, for the importance of acknowledging “international law as a political project” in order to enable it to function both as an instrument for advancing various claims and as a relatively autonomous formal technique.

International Law and Sustainable Development: Lessons from the Law of International Watercourses

Implementing the goal of sustainable development has long been heralded as the means by which the needs of both present and future generations can be met. However, finding a long-term balance between economic, social and environmental interests, the basic tenet of sustainable development, has proved largely illusive in practice. This book shows that while a number of legal frameworks to help promote the goal of sustainable development have been proposed at the international level they fail to fully capture the essence of sustainable development and international law's capacity to support its implementation. The book offers a critical analysis of past attempts to develop legal frameworks for promoting sustainable development at the international level, and advocates for a fresh approach based on lessons learnt from the law of international watercourses. The book is divided into four sections. The first section includes an overview of the topic area and an understanding of international law. In section two the book explores the meaning of sustainable development and considers the term's relationship with international law. A detailed analysis of how the law of international watercourses seeks to reconcile competing economic, social and environmental interests is carried out in section three. The book concludes with a section advocating the need for a fresh approach to international law and sustainable development and offering the foundations for this approach based on lessons learnt from the law of international watercourses.