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Begin New Search Topic International Law Content Type Journal Article Publication Year within 3 Years

1. Karabakh and Azerbaijani Statecraf

Author:
Michael M. Gunter
Publication Date:
01-2024
Content Type:
Journal Article
Journal:
Baku Dialogues
Institution:
ADA University
Abstract:
This brief article seeks to make two important and related points. The first is that the international law principles of sovereignty and territorial integrity hold that Karabakh belongs to Azerbaijan, despite misleading arguments to the contrary about supposed Armenian rights of self-determination. The second provides a partial assessment of Heydar Aliyev’s legacy and how it relates to some of the policies pursued by his successor, Ilham Aliyev. Each will be examined in turn.
Topic:
International Law, Sovereignty, Territorial Disputes, and Self-Determination
Political Geography:
Armenia, Azerbaijan, South Caucasus, and Nagorno-Karabakh

2. The Advisory Function of the International Court of Justice: Are States Resorting to Advisory Proceedings as a “Soft” Litigation Strategy?

Author:
Myrto Stavridi
Publication Date:
04-2024
Content Type:
Journal Article
Journal:
Journal of Public and International Affairs (JPIA)
Institution:
School of Public and International Affairs (SPIA), Princeton University
Abstract:
In the last decades, there has been an increase in advisory opinions of the International Court of Justice (ICJ) that relate to vital political interests directly affecting the sovereignty of states. Even though advisory opinions are not binding and do not require the consent of the states involved, advisory proceedings have been increasingly and strategically used by states and international actors as contentious proceedings in disguise. Exploring the history of the advisory function of the ICJ and its predecessor, this article argues that advisory proceedings constitute a “soft” litigation strategy and a particularly useful tool for small states or non-state entities, as it has the potential to counterbalance the inherent power disparities in the process of international bargaining by adding the authoritative voice of the ICJ to the debate. This paper connects this development to a modern tendency of states to judicialize international affairs.
Topic:
International Law, Sovereignty, International Affairs, International Court of Justice (ICJ), and Advisory Opinions
Political Geography:
Global Focus

3. Is There Hope for Gaza Under International Law?

Author:
Abigail Flynn
Publication Date:
01-2024
Content Type:
Journal Article
Journal:
Cairo Review of Global Affairs
Institution:
School of Global Affairs and Public Policy, American University in Cairo
Abstract:
Why has international law failed to hold Israel responsible for its destruction of Gaza? It was built to enable the colonizer, not to protect the colonized, explains legal expert Jason Beckett.
Topic:
Genocide, International Law, United Nations, International Court of Justice (ICJ), Israeli–Palestinian Conflict, and 2023 Gaza War
Political Geography:
Middle East, Israel, Palestine, and Gaza

4. Genocide on the Docket at the Hague

Author:
Omar Auf
Publication Date:
01-2024
Content Type:
Journal Article
Journal:
Cairo Review of Global Affairs
Institution:
School of Global Affairs and Public Policy, American University in Cairo
Abstract:
International law is a tool for both oppression and emancipation, says AUC law professor Thomas Skouteris in this Q&A as he breaks down the intricacies of the ICJ’s January 26 order for provisional measures in South Africa v. Israel, and elucidates the present and future of international law.
Topic:
Genocide, International Law, International Court of Justice (ICJ), and 2023 Gaza War
Political Geography:
Israel, South Africa, Palestine, Gaza, and The Hague

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

Author:
Muhammad Azeem
Publication Date:
06-2024
Content Type:
Journal Article
Journal:
Uluslararasi Iliskiler
Institution:
International Relations Council of Turkey (UİK-IRCT)
Abstract:
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.
Topic:
International Relations, International Law, Socialism/Marxism, Resistance, Self-Determination, Third World Marxism, Western Marxism, and Soviet Official Marxism
Political Geography:
Global Focus

6. Examining the Gap Between EU Fundamental Values in Theory and Practice: A Case Study of Macedonia’s Journey Toward EU Accession

Author:
Larisa Vasileska
Publication Date:
04-2024
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
The objective of this paper is to assess the gap between the EU’s commitment to its values and the fairness of its accession process, in particular the Macedonian journey to the EU, which is not only contradictory to the EU’s core values but also contradictory to the principle of equal rights and self-determination. For this purpose, the methodology consists of conducting qualitative analysis based on two bilateral agreements and analyzing the evolution of EU requirements and their implications. The paper argues that rather than enforcing the Copenhagen criteria and making the country’s pre-accession progress contingent on the strengthening of the rule of law, the EU has expended enormous effort in what was essentially a political bilateral dispute between states, with the resolution of the dispute to be replaced as a pre-accession criterion. The paper concludes that the EU should return to its fundamental values and prioritize merit-based criteria in the enlargement process, not a politically based decision.
Topic:
International Law, Bilateral Relations, European Union, Rule of Law, Values, Disputes, and Enlargement
Political Geography:
Europe and Macedonia

7. The Challenges of Normalizing Relations Between Belgrade and Pristina: Implications of the “Agreement on the Path to Normalization”

Author:
Mihajlo Vucic and Dragan Djukanovic
Publication Date:
04-2024
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
The article analyzes the process of normalizing relations between Belgrade and Pristina after adopting the Agreement on the Path to Normalization. The analytical framework of neorealism was used to explain that the normalization process was accelerated due to the war crisis in Eastern Europe. The international legal aspects of the agreement were scrutinized, based on the method of content analysis and comparative studies, to argue that the agreement is a legally binding treaty between two sides that respect each other’s international legal personality. The authors concluded that the European Union and the United States attempted to create new momentum in the decade-long and rather unsuccessful process by adopting the Agreement and the Annex on implementation. Thus, these documents were put in the context of relations between Belgrade and Pristina and broader European and regional levels of complex relations. In addition, the analysis concluded that the documents serve as new impulses in normalization as a continuous legal formalization of relations between the two sides based on international legal rules.
Topic:
International Law, Bilateral Relations, European Union, and Normalization
Political Geography:
Europe, Kosovo, Serbia, and Balkans

8. When the Exception Overtakes the Rule: COVID-19, Security Exemption Clauses, and International Investment Agreements

Author:
Kayla Maria Rolland
Publication Date:
02-2024
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In the trade and investment law regimes built in the post-war period, “security exemption clauses” were included within trade and investment agreements as a safety valve, permitting States to deviate from their commitments in the event that their security interests were implicated. Initially, these clauses were understood to be narrowly limited to instances of war and interstate conflict. With the rise of the national security state in the decades since, however, the concept of security interests has ballooned to encompass an ever-growing set of issues, with some fearing that the rules may become irrelevant. This has been particularly facilitated through “third generation” security exemption clauses and their inclusion of self-judging language. The COVID-19 pandemic in particular adds a new dimension to this phenomenon. As a case study analysis of the text of the Chile-Hong Kong, China SAR bilateral investment treaty (BIT) will demonstrate, it may be feasible for States to invoke security exemption clauses to justify measures taken in response to the COVID-19 pandemic in some contexts, particularly with third generation, self-judging security exemption clauses. The expanding notions of security exemption clauses have significant implications for the investor-State dispute system as a whole.
Topic:
Security, International Law, International Trade and Finance, Treaties and Agreements, COVID-19, and International Investment Agreements
Political Geography:
China and Global Focus

9. A Right to Come Within State Jurisdiction Under Non-Refoulement? Interpreting Article 1 of the European Convention on Human Rights in Good Faith Within the Context of Extraterritorial Migration Control

Author:
Laura Goller
Publication Date:
02-2024
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Externalizing borders for the purpose of shifting and avoiding responsibilities under human rights law is not a new phenomenon in the context of migration control. In the Mediterranean, European States have increasingly sought new measures of extraterritorial migration control to avoid being held responsible under cornerstones of international refugee law such as non-refoulement. In the precedent Hirsi Jamaa and Others v. Italy, the European Court of Human Rights (ECtHR) established that the exercise of effective control over persons on the high seas amounts to the exercise of jurisdiction within the meaning of Art. 1 of the European Convention on Human Rights (ECHR). As a result, European States began to find new ways of controlling their borders. The focus on physically controlled ‘push-backs’ shifted to administratively controlled ‘pull-backs’. Cooperation with third States by equipping and training their coast guards has become a way for European States to avoid any direct contact with migrants, thereby avoiding triggering jurisdiction as defined by the current case law of the ECtHR. This paper focuses, first, on how ECtHR jurisprudence responds to new forms of extraterritorial migration control and, second, on how this concept of jurisdiction relates to the obligation of States to fulfill their international obligations in good faith. How can the object and purpose of an obligation be undermined if that obligation does not apply in the first place? While the realization of Hannah Arendt’s concept of ‘the right to have rights’ seems to depend in practice on the geographical location of the individual, this paper addresses the question of whether there might be a right to come within the jurisdiction of a State, in the sense of gaining access to a legal system, applying a good faith reading to non-refoulement.
Topic:
International Law, Migration, Borders, Jurisdiction, Non-refoulement, European Court of Human Rights (ECtHR), and European Convention on Human Rights (ECHR)
Political Geography:
Europe

10. Containing the Containment: Using Art. 16 ASR to Overcome Accountability Gaps in Delegated Migration Control

Author:
Almut Möller
Publication Date:
02-2024
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
When the European Court of Human Rights found Italy responsible for push-backs on the high seas in Hirsi Jamaa based on Italy’s effective control over the individuals, it simultaneously solidified the concept of jurisdiction as a prerequisite of human rights obligations and provided States with deeper knowledge on how to avoid responsibility. Since then, instead of pushing the migrants back themselves, destination States increasingly delegate the task of migration control to third States. Under the guise of “capacity building”, they fund, train, and equip third States to exercise containment measures and carry out pull-backs. By way of bilateral agreements, destination States remain in control of the migration flow while avoiding any direct contact with the migrants that would trigger their human rights obligations. One example for this is the Italian-Libyan cooperation under the 2017 Memorandum of Understanding, which was renewed in 2020. Migrants intercepted by Libya are systematically detained in prisons under horrific conditions, which is in clear violation of their human rights. The present article explores ways to allocate responsibility on destination States for their involvement in those human rights violations notwithstanding the lack of jurisdiction. In particular, the article deals with the question whether the general international law of State responsibility is applicable alongside international human rights law. Responsibility for complicity, as lined out in Art. 16 of the Articles on State Responsibility for Internationally Wrongful Acts, is compared to the concept of due diligence obligations in international human rights law, dismissing the claim that the latter poses lex specialis. Subsequently, Art. 16 ASR’s substantive requirements are applied to the case study in order to test the provision’s capability to overcome the accountability gap.
Topic:
Human Rights, International Law, Migration, Accountability, and European Court of Human Rights (ECtHR)
Political Geography:
Europe, Libya, and Italy