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Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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A. Heading

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Sué González Hauck

Required knowledge: Link

Learning objectives: Understanding and contextualizing the debates on the origins of international law, particularly regarding the figures of Hugo Grotius and Francisco de Vitoria and the Peace of Westphalia.

A. Of Fathers and Birth Certificates: The Founding Myths and International Law's Institutional Anxiety

International law as a discipline is famously riddled with its fair share of anxiety. "Does international law even exist?", "Does it matter?" "Is it really law?" and, perhaps most importantly, "Are we, international lawyers, the good guys or are we the baddies?" International law has been able to affirm its existence by grounding itself in a tradition that provided a 'birth certificate' - the Peace Treaties of Münster and Osnabrück or 'Peace of Westphalia'- and a 'father' - mainly Hugo Grotius. Together, the Peace of Westphalia and Grotius' work De iure belli ac pacis libri tres (Three books on the law of war and peace) established State sovereignty as the source of international law's binding force, thus establishing international law as real law that is distinguishable from religious and moral sources of normativity. Simultaneously, grounding its existence in peace treaties that ended a 30-year period of war and chaos on the European continent and casting Hugo Grotius as a secular, peace-loving humanitarian allowed international lawyers to see themselves as invested in a project that served humanity as a whole and that would bring peace, order, and justice to the world. In recent decades, TWAIL scholars have drawn attention to international law's sustained and central role in legitimizing and maintaining the colonial project. These critical histories of international law draw a different line of continuity from the writings of Hugo Grotius and Francisco de Vitoria to the establishment of international law as a formalized discipline in the 19th century and to international law in its present form. Simultaneously, the debates about the place of people like Hugo Grotius and Francisco de Vitoria and of events like the Peace of Westphalia in the history of international law have to be seen against the backdrop of broader methodological debates. Contextualist historical methodologies reject linear narratives altogether and instead aim at placing people and events in the context of their times. In her recent book, Anne Orford responds to the rising influence of these contextualist approaches to the history of international law, insisting that scholars writing histories of international law always create meaning instead of merely finding it.

B. Disputed Parenthood

I. Hugo Grotius, Francisco de Vitoria, and the Colonial Origins of International Law

1. Hugo Grotius and the Grotian Tradition in International Law

Hugo de Groot, whom we know by his Latinized name of Grotius, was born in Delft in 1583, at a time when the Dutch States General had just created the Dutch Republic by abjuring Philip II of Spain and Portugal as the ruler of the Low Countries. The newly founded Dutch Republic was looking to assert itself against Portugal and Spain, which, at the time, were the most important colonial powers. It was in this context that the Dutch East India Company (VOC) asked Grotius to write a defense of the Company's privateering campaign in waters that Portugal had claimed as an Estado de India under Portuguese control. Grotius completed the resulting manuscript, De Indis, in 1607-16-08 and, at the request of the VOC's Director, published chapter twelve of this manuscript in 1609 under the title Mare Liberum (The Free See). This first work of Grotius has long been neglected by mainstream histories of international law, which have focused almost exclusively on De iure belli ac pacis, which is considered to be the first systematic treaties of international law. The myth of Grotius as the 'founding father' of international law is an invention of the late nineteenth century. Key events in this regard were a commemoration of the tercentenary of Grotius's birth in 1883 at the New Church in Delft, the unveiling of a Grotius statue in the Delft market square in 1886, a ceremonious reburial of Grotius' remains in 1889, and, most importantly, the 1899 Hague Peace Conference.

As scholars of international law and international relations sought to reinvigorate the project of a peaceful international order created and maintained by international law after the Second World War, they did so by reclaiming Grotius and sketching a 'Grotian tradition' of international law and international relations. In a 'Grotian' international community, the power of the sovereign State is supposed to be restricted by the rationality of the law, which is equivalent to its systematicity. Hedley Bull took up the idea of a 'Grotian tradition' and contrasted it with a 'Hobbesian' and a 'Kantian' conception of international relations. Bull and other authors of the English School tradition in International Relations Theory see the Grotian conception of international society as a middle-ground position between, on one hand, a 'realist' or 'Hobbesian' view of international relations based on the unfettered sovereignty of States and, on the other hand, a 'universalist' or 'Kantian' idea of a cosmopolitan world society as a global community of humankind, in which international institutions represent individual human beings and are based on common values and globally shared interests.

'Grotian' may be seen as shorthand for liberal internationalism, i.e. for the idea that ordered law can create order through law in a way that is opposed to unfettered power, and for a belief in progress from a state of war and turmoil to a more just and peaceful international order. Boutros Boutros-Ghali's invocation of a 'Grotian moment' after the end of the Cold War illustrates this way of referring to the Grotian tradition: 'The community of nations has entered a new era. The international system that sustained us in the past has yet to be replaced. We are in the process of building a new international system, and we are doing so under unprecedented conditions. The outset of the modern age, some three and a half centuries ago, was an uncertain time, filled with both promise and peril. The foundations for a stable and progressive system of relations among States were laid, at that time, by Hugo de Groot (1583-1645), known as Grotius, the father of international law. Perhaps we have come to another such 'Grotian moment' in history, one in which a renaissance of international law is needed to help transform the world scene in this new era that all States have entered'. International legal scholars have repeatedly invoked 'Grotian moments', inter alia, to promote an interpretation of state sovereignty that places human rights at the center of said concept and therefore of international law,, to assess the role of international law after the invasion of Iraq in 2003,, to argue for the emergence of instant customary law in the field of international criminal law,, and to describe changes in the law of statehood. Invoking a 'Grotian moment' allows international legal scholars and representatives of international institutions simultaneously to argue for change and to ground their project in tradition.

Recent work focusing on the connection between Grotius's work and colonialism not only calls into question the flattering self-image of international law as a peace-seeking humanitarian discipline. It also challenges the assumption that the origins of modern international law can be found exclusively in Europe. Placing Grotius in the context of his role as legal advisor to the VOC shows that the questions he adressed in his work did not originate on the European continent but, outside Europe, through the colonial encounter.

2. Francisco de Vitoria

Hugo Grotius' strongest competitor for the role of 'father of international law' is Francisco de Vitoria. The argument put forward in favour of granting Vitoria and not Grotius this title is that, while Grotius may have presented the first systematic exposition of what was then called the Law of Nations, Grotius was already writing in a tradition that was founded by the so-called School of Salamanca, of which Francisco de Vitoria was, in turn, the founder and most prominent member. Vitoria was the first scholar to adapt the Roman concept of ius gentium to what we recognize now as an international context. The context to which he applied the term and its legal implications was the encounter between the Spanish empire and indigenous peoples in what is now known as South America and the Caribbean. His two lectures in which he first applied ius gentium were titled De Indis Noviter Inventis ['On the Indians Lately Discovered'] and De Jure Bellis Hispanorum in Barbaros ['On the Law of War Made by the Spaniards on the Barbarians'], and they were obviously concerned with a colonial relationship. The question of whether Vitoria was using ius gentium to condemn or at least reign in colonial violence or whether he was actually justifying and thereby enabling it is a hotly debated question. This question is debated so fiercely, because it is equated with the question of whether international law has been, from the beginning, humanitarian or imperialist in nature.

3. Other Contendants for the Title of 'Father of International Law'

Other figures on whom international legal scholars have relied as founders of include Francisco Suárez (1548-1617), Alberico Gentili (1552-1603), Emer de Vattel (1714-1767),and Jeremy Bentham (1748-1832), who coined the term 'public international law'.

II. Mothers of International Law?

As international law as a discipline is increasingly rallying around the goal of increased female representation not only in international institutions but also in the history of international (legal) thought, Christine de Pizan has emerged as the strongest contendant for the title of 'mother of international law'. Her claim to the title rests on the fact that she wrote a book on the laws of war and that she did so long before Grotius and even before Vitoria, Gentili, and Suárez. She is the author of the book titled Livre de Faits d'armes et de chevalerie(The Book of Deeds of Arms and of Chivalry), which is considered to be one of the first texts on the laws of war.

C. Birth Certificate: 'Westphalia' and the 'Westphalian System'

The myth of ‘Westphalia’ is the familiar story according to which the peace settlements of Münster and Osnabrück established a system of sovereign States in which we still live today. The myth was created in the 19th century and consolidated in its current form mainly based on an article written by Leo Gross in 1948. Gross was not the first one to pinpoint the beginning of ‘modern international law’ to the Peace of Westphalia and he admitted that the peace treaties of Münster and Osnabrück constituted a step ‘in the gradual, though by no means uniform, process which antedates and continues beyond the year 1648’ rather than a radical break. However, Gross also states that ‘Westphalia, for better or worse, marks the end of an epoch and the opening of another. It represents the majestic portal which leads from the old into the new world’. Gross exerted significant influence by unfolding what scholars of international relations and international law came to describe as the ‘Westphalian System’, a chiffre employed to refer to a framework for political and legal thought rather than to a historical reality. He presents a narrative of continuity spanning from the Peace of Westphalia to the Charter of the United Nations. According to this narrative, the Peace of Westphalia as ‘the first great European or world charter’ represents ‘the first of several attempts to establish something resembling world unity on the basis of states exercising untrammeled sovereignty over certain territories and subordinated to no earthly authority’. Gross substantiates this claim by stating that regarding the principle of religious tolerance, the purpose of achieving international cooperation, the guarantee of peace, and the establishment of rules for peaceful settlement of disputes, the UN Charter can be seen as the latest step in a line of evolution that began with the Peace of Westphalia.

The treaties themselves and the political and social circumstances in 1648 do not warrant the characteristics of the ‘Westphalian System’ attributed to it. Attributing the establishment of modern international law as a system based on state sovereignty to the Peace of Westphalia is – at best – a simplification. The developments that are commonly associated with ‘Westphalia’ either started more than a century before 1648 or did not take place until the 19th and 20th centuries. Particularly, the notion of territorial sovereignty that is supposed to be the cornerstone of the ‘Westphalian System’ was not explicitly referenced in the treaties.The peace treaties did indeed presuppose the sovereignty of the Swedish and French kings in the sense that they were not subordinated to the authority of the Emperor or the Pope. This conception of sovereignty, however, differed from the characteristics of the respective nineteenth century conception. The latter is the conception commonly referred to with the chiffre of the ‘Westphalian System’ and it includes the sovereign authority to dispose of the law. In contrast, the kind of sovereignty to which the peace traties of Münster and Osnabrück referred was grounded in natural law ideas and in the ideal of solidarity among monarchs. Instead of introducing a system of abstract territorial sovereignty, the Peace of Westphalia 'maintained a period of personal relations of power [...] in a complex patchwork of imperial and princely sovereignties and quasi-sovereignties until the early-nineteenth century and the final breakdown of the Holy Roman Empire'.

The common simplifications of historical processes and the habitual reference to ‘classical’ international law or ‘classical’ notions of sovereignty as ‘Westphalian’ engenders consequences regarding the conditions of possibility of present-day arguments about international law. By serving as the founding myth of both the system of sovereign states as a political system and the system of international law based on State (note the uppercase) sovereignty, the myth of ‘Westphalia’ not only establishes a hierarchy in which arguments derived from sovereignty seem to ‘fit’ the system and arguments that encroach on this sovereignty have to be framed as justified exceptions to the rule, but it also makes this normative hierarchy seem ‘natural’. By making these conditions of possibility for making international legal arguments seem natural, the myth of 'Westphalia' and all that is associated with it obfuscates how international law functions as a language of power.

Further reading

• Alonso Gurmendi, A Tale of Three Vitorias (Opinio Juris 1 April 2021)
• Martine van Ittersum, 'Hugo Grotius: The Making of a Founding Father of International Law' in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International Law (OUP 2016)
• Maïa Pal, Jurisdictional Accumulation. An Early Modern History of Law, Empires, and Capital (CUP 2021) 34-38
• Yasuaki Onuma, 'When was the Law of International Society Born?' 2 (2000) Journal of the History of International Law 1
• Stéphane Beaulac, ‘The Westphalian Legal Orthodoxy – Myth or Reality?’ 2 (2000) Journal of the History of International Law 148
• Andreas Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’ 55 (2001) International Organization 251
• Benno Teschke, The Myth of 1648: Class, Geopolitics, and the Making of Modern International Relations (Verso 2003)
• Richard Joyce, 'Westphalia - Event, memory, myth' in Fleur Johns, Richard Joyce, Sundhya Pahuja (eds), Events: The Force of International Law 55
• José- Manuel Barreto, 'Cerberus: Rethinking Grotius and the Westphalian System', in: Martti Koskenniemi / Walter Rech / Manuel Jiménez Fonseca (eds), International Law and Empire: Historical Explorations (OUP 2017) 149-176

Conclusion

• Summary I
• Summary II

Footnotes

Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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A. What is Decolonisation?

The term ‘decolonisation’ most typically refers to the dissolution of European empires in the aftermath of the second world war— the time period between 1940’s-1970’s. This period is marked as a watershed moment in the history of international order when a large majority of former European colonies gained independence and became states in their own right. Concurrent to this, international law recognised a fundamental right to self-determination. The acquisition of sovereignty and rights of self-determination of non-European peoples in the mid-20^th century marked the end of an epoch of explicitly racialist international law and politics. At the same time, scholars of third world sovereignty note important limitations to a state-centric theory of decolonisation. For instance, the newly independent states were born into a system, the rules of which had already been largely established against their favour. Scholars of sovereignty have noted the peculiar position of former colonies in the international order even since the dissolution of formal imperialism. Anthony Anghie has put it “the acquisition of sovereignty by the Third World was an extraordinarily significant event; and yet, various limitations and disadvantages appeared to be somehow peculiarly connected with that sovereignty”.[1] Similarly, in his analysis of African independence, Grovogui notes that there is a common misunderstanding in theories of international order which “equate the transfer of political power, however limited, from the coloniser to the colonised, with African self-determination and an assumption of national sovereignty”. [2] Grovogui’s analysis remains pertinent even today, and can be extended far beyond the African continent. The era of formal colonisation is over, nevertheless, the formerly occupied states still remain subordinated members of international order. The terms “global south”, “third world” or “developing countries” try to allude to this power differential. Accordingly, more and more scholars think of decolonisation as something further that needs to be done.

Today there are at least two ways in which the term ‘decolonisation’ is deployed in the literature. First, decolonisation as the very concrete, legal and political practice whereby former colonies gained their independence, i.e. they began to practice the right of self-determination. It is perhaps more fruitful to refer to this temporal aspect of decolonisation as the decolonisation era or the Independence era, because it is now quite well established that even though territorial empire is now over, western dominance continues in different forms through a number of issue areas including the doctrines, concepts and processes of international law.[3] The second sense in which decolonisation is addressed in the literature really builds on the limitations of the first, and requires us to take stock of our history, ongoing power relations and epistemological practices. This chapter proceeds by first outlining the classical theory of decolonisation in international law and international relations and then considering some of the historical and contemporary critiques of this idea. The main goal is to  highlight the different ways in which the term “decolonisation” is used in international law research ties into larger questions about how international legal scholarship either aligns with or ties into the practices of global power.  

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[1] A. Anghie, Imperialism, Sovereignty and the Making of International Law, (Cambridge: CUP, 2005), p. 3

[2] S. N. Grovogui, Sovereigns, Quasi Sovereigns, and Africans, Race and Self-Determination in International Law,  (Minneapolis:   University of Minnesota Press, 1996), p. 1

[3] Take for example, the constitution of the UN Security Council. For a discussion see, Anghie, Imperialism and International Law,

1. A State Centric History of International Order

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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A. Heading

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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A. Heading

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Marnie Lloydd

Required knowledge:

§ 12 Peaceful Settlement of Disputes;

§ 14 Law of Armed Conflict

Learning objectives: This chapter introduces students to possible avenues for thinking about the relationship between violence and international law. The international legal system seeks to prevent certain forms of such violence such as wars, but also accepts the use of force as something necessary to counter violence and insecurity, such as through the right of self-defence or military action taken in accordance with the ‘responsibility to protect’. This chapter presents these tensions and ethical dilemmas as a way of starting to consider the relationship(s) between international law and violence.

A. Prevention of violence in international law

Significant parts of international law are concerned with preventing  – or at the very least, restraining – organised armed violence. A primary purpose of the United Nations collective security system is precisely to “maintain international peace and security”, saving “succeeding generations from the scourge of war”.[1] As part of such efforts, key instruments invoke peace, nonviolent approaches to contestation, caring for others and acting with respect and friendliness towards other states.[2]

Concretely, a fundamental rule set out in Article 2(4) of the United Nations Charter prohibits the threat or use of force by States.[3] This is supported by the requirement that states settle their international disputes by peaceful means,[4] in effect, preserving and safeguarding peace that does exist.[5]

More broadly, the purpose of many parts of international law is to continually improve the global situation, protecting individuals from forms of 'violence' in its broadest meaning: ensuring people’s fundamental rights can be enjoyed, offering international protection to those who do not enjoy the protection of their state, requiring accountability for abuses committed, and so forth.

Indeed, many students become interested in international law or embark on professional work related to international law precisely because it is seen as an aspirational vehicle for “making the world a better place”; because it is understood to be doing good, or at least working towards doing good, or at the very least, placing required restraint on the worst that humanity has to offer.

Those aspirations for a peaceful and just world have not (yet) been achieved, whether through international law or any other project. To some extent, the violence that occurs is due to a lack of compliance with international law – aggression, torture, the use of prohibited weapons, extrajudicial killings, enforced disappearance are prohibited in all circumstances and are of concern precisely because they cause significant harm and suffering. Enforcement of international law also presents clear challenges.[add internal link to textbook] At the same time, and significantly, despite many violations, fundamental rules of international law, such as the prohibition on the use of aggressive force or the murder of detainees, are respected by the majority of countries the majority of the time.

Advanced: The notion of violence

The term ‘violence’ is not defined in international law and is used here in a general way. This chapter focuses on organised armed violence occurring during armed conflicts and, thus, international law related to the use of force (jus ad bellum) and regulating armed conflict (jus in bello).

Yet, exploring the relationship(s) between international law and violence is a potentially wide-ranging endeavour since there is no reason the terms 'harm' and even 'violence' are limited to exceptional uses of armed force and their direct, physical consequences. Harm and violence can be structural; part of many people’s everyday experiences. Imperialism, colonialism, discrimination leading to exploitation or exclusion, economic or political inequalities, activities that degrade natural resources and the environment, injustice and epistemic violence, and different states' unequal levels of voice and power within the international legal order more broadly, could similarly be considered forms of violence.

Of note, certain non-military threats are also considered threats to international peace and security which might potentially require an armed response and threats to the security of groups of people (as opposed to State security) have justified armed operations in response. Moreover, several other global issues are talked about in this way, such as combating the crisis of the COVID-19 pandemic or the ‘war on drugs’.

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[1] United Nations Charter, preamble.

[2] See e.g. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, GA Res 2625, UN Doc A/RES/2625(XXV) (24 October 1970).

[3] United Nations Charter, art 2(4).

[4] United Nations Charter, art 2(3). See also art 1(1).

[5] Cecilia M. Bailliet and Simon O’Connor, ‘The good faith obligation to maintain international peace and security and the pacific settlement of disputes’ in Cecilia M. Bailliet (ed), Research Handbook on International Law and Peace (Edward Elgar, 2020) 83, at 105.

B. Acceptance of violence in international law

Since the international legal system aims to “maintain international peace and security” but this has not yet been achieved, the conundrum arises that violence might be considered necessary precisely to protect people from other violence. The international legal system’s preoccupation with peace and security therefore has two faces: as well as seeking to prevent war and violence, it authorises military force in certain circumstances in the pursuit of peace and security. As the UN Charter provides, “armed force shall not be used, save in the common interest”.[1]

Concretely, Article 2(4) of the UN Charter is not absolute but must be read alongside other relevant articles. Most obviously, article 51 of the Charter protects a state’s “inherent right of individual or collective self-defence if an armed attack occurs”[2] and the UN Security Council may authorise forcible measures where a threat to international peace and security has been determined.[3] One example is Ukraine’s actions in defend itself militariliy against Russia’s attacks. Another example is the Security Council’s authorisation of xx in 2011.[4] We could also think of robust peacekeeping mandates such as that of MONUSCO in the Democratic Republic of the Congo, in which the UN forces take sides in the conflict against certain non-state armed groups.

Advanced: Non-state actors

International law does not take a position allowing or prohibiting the resort to force by non-state armed groups. The notion of the responsibility to protect pays attention to the real needs for protection that a community may have but nevertheless envisages states undertaking the intervention considered necessary. [fn]

In line with this logic, the international legal system also regulates certain instances of force. Once a situation of armed conflict exists, international humanitarian law (IHL) places limits on the means and methods of waging war to reduce its humanitarian consequences, but takes no position on the resort to armed force itself and provides a privilege for violence to be used by certain armed actors. Thus, while some forms of violence, such as torture or genocide, are prohibited in all circumstances, other forms, such as killing and injuring, are accepted provided they fall within the bounds of the law. The law seeks to restrain or regulate but does not prohibit these acts of violence.

In both cases, this means that it is not only violations of the jus ad bellum or jus in bello that result in violence. Rather, while compliance with international law does not require physical force, fully compliant actions can nevertheless be extremely violent and cause significant suffering, even if undertaken in the perceived common interest or considered as a “necessary” or “lesser evil”. Humanitarian consequences such as displacement or even death can also occur simply because of violence, even IHL-compliant violence.[1] In the moment, it matters little to a family whether the bombs they are fleeing were launched proportionally or not.

In this sense, ‘protection’ and ‘caring’ in the international legal system – whether of self or others – are not understood as always necessitating a peaceful approach. Despite the “untold sorrow” from the “scourge of war”,[2] the international legal system is not pacifist. Marc Weller explains, “[w]ars are abolished. Yet, the use of force continues to exist, although it is to be employed as a means of guaranteeing a warless world.”[3]

To protect what is held dear within the system, it is accepted that, at times, the very things that are held dear need to be transgressed. This presents a paradox: within this system, violence is the problem but also the solution.

---

[1] See, for example, ICRC, ‘Displacement in Times of Armed Conflict: How International Humanitarian Law Protects in War, and Why It Matters’ (ICRC, Geneva, 2019), at 21-23.

[2] United Nations Charter, preamble.

[3] Marc Weller, ‘Use of Force’ in Oxford Handbook of International Organisations, 622 at 623.

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[1] United Nations Charter, preamble.

[2] At least, “until the Security Council has taken measures necessary to maintain international peace and security”. See United Nations Charter, art 51.

[3] United Nations Charter, art 42. See also art 53 regarding regional organisations.

[4]

C. The Paradox of Violence as Problem and Solution

Thinking about violence, protection from violence, as well as non-violence, presents an overarching question for international law. Scholars, practitioners and institutions in law, political science, international relations, history, religion, moral philosophy and other disciplines have long thought about such questions. How should one make sense of the complex and enduring relationship between international law and violence? Does law protect people from violence or legitimise violence against them? Can we do harm by doing good? Perhaps more troubling, can we do good by doing harm? How should we understand the effect of legal frameworks such as IHL restraining armed conflict rather than prohibiting it? How should we understand within the current international legal system that violence is at times considered necessary to protect people from violence? What room is there for pacifism in international law?

[The remainder of this section is still being finalised offline]

A fundamental rule set out in Article 2(4) of the United Nations Charter prohibits the threat or use of force by States. This is supported by the requirement that states settle their international disputes by peaceful means. Bailliet and O’Connor note that the emphasis of the Charter’s articles on the pacific settlement of disputes “lies not in resorting to force to establish peace, but in preserving and perpetuating the peace one has. The obligation is thus first and foremost to maintain peace through the resolution of disputes peacefully”. In other words, a preventive approach in order to safeguard peace. More broadly, parts of international law seek to continually improve the global situation, protecting individuals from forms of 'violence' in its broadest meaning: ensuring people’s fundamental rights can be enjoyed, offering international protection to those who do not enjoy the protection of their state, requiring accountability for abuses committed and so forth.

Indeed, many students become interested to learn about international law or embark on professional work related to international law as an aspirational vehicle for “making the world a better place”, that is, because international law is understood to be doing good, or at least working towards good, or at the very least, placing required restraint on the worst that humanity has to offer. While aggression and atrocity crimes still occur, key prohibitions of international law, such as the prohibition on the use of agressive force or the murder of detainees, are respected by the majority of countries the majority of the time. This is significant.

Neverthless, as set out in the introduction, the aspirations for peace, justice and equality are not yet met. Fundamental principles of international law continue to be violated regularly, and in violent ways. The lack of compliance with international law – aggression, torture, the use of prohibited weapons, extrajudicial killings, enforced disappearance – is of concern precisely because it can cause significant harm and suffering. International lawyers may indeed feel some cynicism towards day-to-day practices such as the drafting of resolutions or submissions to treaty bodies which then effect no real change or even end up worsening a situation or muddying the law. Koskenniemi has described the “recurrent enthusiasms gone sour” and Alexander an optimism that “was soon tinged with a deep unease”. Still, these forms of international legal work do grapple with the question of ‘international law and violence’ in their own way. Whether it is working to ban anti-personal landmines, improve migrant workers’ rights or reduce racial discrimination, such efforts recognise harms and violence in the world and a role that law has in it.

More confounding though, peace is often paired with security in the logic of the international legal system. Despite Bailliet and O’Connor’s description of the Charter’s preventive approach that seeks to perpetuate peace noted above, this indicates in fact that ‘peace’ in the UN Charter is to be understood primarily in its narrow version of security/an absence of war rather than any broader conception of “nourishing life”; that resolving violent conflict is its central concern. Since peace requires security, it is to be regained by combating insecurity. The international legal system’s preoccupation with peace and security therefore has two faces: as well as seeking to prevent war and violence, it also allows and regulates certain instances of force. Most obviously, article 51 of Charter protects a state’s “inherent right of individual or collective self-defence if an armed attack occurs” and the UN Security Council may authorise forcible measures where a threat to international peace and security has been determined. In a similar vein, once an armed conflict has begun, international humanitarian law works to restrain violence and reduce its humanitarian consequences, but also provides a privilege for violence to be used by certain armed actors. Thus, while some forms of violence, such as torture or genocide, are prohibited in all circumstances, other forms are accepted. The law seeks to restrain or regulate but does not prohibit these acts of violence. In this sense, ‘protection’ and ‘caring’ in the international legal system – whether of self or others – are not understood as always necessitating a peaceful approach – despite the “untold sorrow” from the “scourge of war”, the international legal system is not pacifist. Marc Weller explains, “[w]ars are abolished. Yet, the use of force continues to exist, although it is to be employed as a means of guaranteeing a warless world.”

This presents a paradox: within this system, violence is the problem but also the solution. To protect what is held dear within the system, it is accepted that, at times, the very things that are held dear need to be transgressed. One could perhaps pretend, then, that if they are part of the solution, certain kinds of violence should not be considered violence at all; in other words, that there could be legitimate, humanitarian, emancipatory or even peace-loving violence, as contrasted with illegitimate or violent violence. Yet, such depictions do not sit easily.

One common way to think about this “necessary evil” is through a progress narrative. International law is clearly not perfect nor entirely successful, but much has been achieved from earlier periods. Key instruments of international law such as the UN Charter or the 1949 Geneva Conventions are seen as significant milestones marking this progressive achievement. With continued dogged development of the law, and greater political will for its respect and enforcement, there could be even further progress towards the utopia of peace.

Somewhat relatedly, some understand that if states and other armed actors would just stop violating international law, the need for self-defence or humanitarian interventions would end. Maintaining a peace that is already in place would logically be more straightforward for the Security Council than reaching that peace from a situation of conflict and insecurity. We see this latter logic reflected in the 1941 Atlantic Charter between the United States and the United Kingdom. Its last provision states:

[...] all of the nations of the world, for realistic as well as spiritual reasons must come to the abandonment of the use of force. Since no future peace can be maintained if land, sea or air armaments continue to be employed by nations which threaten, or may threaten, aggression outside of their frontiers, they believe, pending the establishment of a wider and permanent system of general security, that the disarmament of such nations is essential. [...]

However, before that, the sixth paragraph reads “after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries.” In other words, just one more battle, and then we will lay down our arms. This reflects the lived reality of the devastation caused by the World Wars which demanded a Security Council of powerful states that could prevent such wars reoccurring. Yet, it also illustrates the conundrum that continues to present itself when demands are made that certain states must disarm, while others must be allowed to retain their arms in order to defend themselves or others.

When international law is called upon aspirationally, it can be understood as working to distinguish lawful from unlawful conduct or circumstances – to define and categorise them. Even if one acknowledges the politics behind such categorisations, one understanding is that the existence of the law acts – or at least ideally it would act  – as a restraint on belligerents, stepping in to hold them back where their actions would otherwise breach the agreed line. Whether one is inclined to take a Hobbesian view of human society’s disposition towards competition and war or to believe that humans are loving and non-violent at heart, within this logic, law operates to protect from war; law and violence become two different worlds. Thus, peace is the normal state of affairs, which is protected by international law and the system of collective security. And when law fails, war breaks out. While the system still has certain deficiencies, for some, it is the only “stable workhorse” available and the basic design of collective security may be more or less right; its functioning is underperforming primarily due to a lack of genuine willingness of states. We must be patient and committed, while we remain in the ‘not yet’ of peace and justice.

Other thinkers appear less willing to sit patiently in the “not yet” and view international law as having a more contested, even conspiratory, role in violence. In contrast to the above for instance, for Vanja Hamzić, law and violence are not of two different worlds rubbing up against each other, but are already “an old couple”. Regardless the durtion of the relationship, other thinkers note its ebbs and flows in different political contexts. For example, some perceive that the delegitimation of war from the twentieth century saw a relegitimation in the twenty-first or a revival of ‘just war’ framings. Others likewise saw problems with seemingly expanding powers to resort to force. Iain Scobbie, for instance, has commented regarding claims of force as lawful:

Given the recurrent use of the rhetoric of ‘self-defence’, especially collective self-defence, which has been invoked to justify the extraterritorial use of force by powerful States against non-State actors and individuals situated in weaker States, is this an attempt to redefine the ambit of collective security in a way which secures some States’ freedom of action but which erodes the settled contours of the prohibition of the use of force in the territory of another State? Is this an attempt to defend the pluralism encompassed in the ideology of liberal internationalism against the absolute certainties of fundamentalism, whether ideological, theological or political, which expresses disaffection with the perceived values and structure of the current international system, by using, rather than by refraining from using, force? If so, can we claim that this is really ‘progress’?”

Appearing even more disenchanted, Dianne Otto has posed the question of “how law helps to reproduce the inevitability of the deadly, anthropocentric, imperial, neoliberal military-industrial-complex” and “whether there remain any remnants of opportunity in law” with which one might yet work if one wanted to imagine alternative notions of peace. In that dire description, international law certainly no longer sounds like an aspirational vehicle for “making the world a better place” with lack of political will and violations of its rules as its key deficiency, and committed patience what is required. Rather, the logic, practice and demonstrated interests of the entire system are being critiqued and challenged.

D. Concluding Reflections: An Enduring Relationship Between Violence and International Law?

[This section still being finalised] Yet, international law’s preoccupation with peace and security has two faces: as well as seeking to prevent war and violence, the contemporary international legal system also allows and regulates certain instances of force. While some forms of violence, such as torture or genocide, are prohibited in all circumstances, other armed violence, such as the use of force between states or against an organised armed group, are accepted – the law seeks to restrain but does not prohibit this violence. More specifically, violence is often considered necessary precisely in order to protect people from other violence. Thinking about violence, protection from violence, as well as non-violence, is therefore an overarching question for intentional law.

To consider this overarching question, this section introduces selected key thinking on these conundrums from scholars, practitioners and institutions. International law seeks to prevent war and violence but by regulating it, also allows it. How should we understand this reality of the current international legal system that violence is sometimes considered necessary in order to protect people from violence, and that legal frameworks such as international humanitarian law opt for restraining armed conflict rather than prohibiting it? How should we understand this humanitarian impulse/imperative, and what room is there for pacifism in international law?

- This section will briefly use concrete examples from the law on the use of force, as well as the law of armed conflict (such as the 1999 NATO bombing of Serbia, airstrikes in Gaza, the principle of the responsibility to protect such as applied in the 2011 intervention in Libya, and robust peacekeeping mandates such as applied in Democratic Republic of Congo to discuss this question. (internal link to chapters on IHL, Use of force, possibly peaceful settlement of disputes, possibly history of IL/TWAIL)

- It will introduce the reader/student to key thinking on these issues from scholars, practitioners and institutions such as the ICRC, Martti Koskenniemi, Frederic Megret, David Kennedy and Samuel Moyn, possibly Anghie (oh my goodness, need some women and other scholars...)

- It will relate the underlying dilemma of seeking to balance military necessity with humanitarian protection to similar tensions inherent in other moral/ethical, philosophical and religious conceptions of violence and humanitarianism, in particular the ancient Indian concept of “Ahimsa” (non-violence or do no harm) which can likewise be understood/interpreted in different ways in terms of its resulting actions. Will note that 'do no harm' is also a basic tenet of liberal humanitarianism (B. Anderson).

- The section will argue and explore how such tensions regarding violence and humanitarianism are not unique to international law, but that international law exhibits those tensions that exist more generally in life and society and ways of understanding human relations. Can also link to notion that 'harm' or 'violence' is not necessarily only armed or physical violence (wars and interventions), but we could also think about imperialism, colonialism, discrimination, injustice, and different states' unequal levels of voice and power more generally - how IL both empowers and justifies/restricts (link to history/myths or eurocentrism chapters?)

• Summary I
• Summary II

Further Readings

• Helen Dexter, 'Peace and Violence', in Paul D. Williams and Matt McDonald, Security Studies: An Introduction 3rd ed. Vol. 1. (Milton: Routledge, 2018) 206-220.
• Martti Koskenniemi, 'The Lady Doth Protest Too Much - Kosovo, and the Turn to Ethics in International Law' (2002) 65(2) 170.
• Pål Wrange, ‘Protecting which peace for whom against what? A conceptual analysis of collective security’, in Cecilia M. Bailliet (ed), Research Handbook on International Law and Peace (Edward Elgar, 2020) 107.
• Dianne Otto, ‘rethinking “peace” in international law and politics from a queer feminist perspective’ (2020) 126 Feminist Review 19.
• David Kennedy, ‘Lawfare and Warfare’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge University Press, 2012) 158.
• Eyal Weizman, The Least of All Possible Evils: A Short History of Humanitarian Violence (Verso, 2017).

Footnotes

Author: Sué González Hauck

Required knowledge: Link

Learning objectives: Understanding XY.

A. Introduction

Consent is at the heart of the international legal system. The degree to which it is taken to structure the international legal system as a whole depends on whether and to what degree one subscribes to voluntarist theories of validity of international legal rules. The famous Lotus case is the often-cited symbol and point of anchoring for such voluntarist conceptions of international law. The often-cited passe of the Lotus dictum in this context reads: 'International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.'

Consent is thus supposed to be the expression of the 'free will' of a sovereign state and the source of obligations under international law. The principle of consent is reflected in the way international law is formed. This is most obvious in the cases of treaties, which are, in principle, only binding on a state if this state has expressed its consent to be bound by the respective treaty (cf. Articles 11-17 VCLT). Consent is also an essential part of international dispute resolution. Under Article 36 of the Statute of the ICJ, states can accept the ICJ's jurisdiction either by signing the ICJ Statute, or by making a special declaration recognizing the ICJ's jurisdiction in a particular case. This means that a state can only be brought before the ICJ if it has consented to the ICJ's jurisdiction either generally or specifically in a particular case.

Two main issues arise regarding this conception of the role of consent in international rule-making: First, given that States are legal entities who cannot form and express a 'free will' in the same way an individual person can, the question of whether and how one can attribute a free will to a State and which expressions of such an attributed will count as expressions of State consent remains one of the enigmas at the heart of international law. Second, the prevailing formalized conception of consent, which flows from the idea of sovereign equality among States, does not take into account material inequalities.

It is commonplace among international lawyers to juxtapose an extreme version of a voluntarist conception of international law, in which consent and only consent is supposed to be the source of obligations under international law, to a conception of international law based on community values. According to Martti Koskenniemi, this contrast between consent and justice is but one of the many ways in which international legal arguments permanently oscillate between 'concreteness' and 'normativity'.

B. Consent, Consensus, and Anarchy

The importance of consent in international law stems from the fact that there is no international government. The absence of government or hierarchical rule in the sense of a centralized authority that can make and enforce laws can be defined as anarchy. The absence of centralized government does not entail the absence of order or rules. In the absence of formal hierarchical rule and thus under conditions of formal equality, the subjects of international law, i.e. mainly States, can only be bound by a rule of international law if they have given their consent. This mirrors the ideal of consensual decision-making and unanimity, which communal anarchist theories embrace. These theories were developed with smaller communities of individuals in mind, not with a global community of States. The difference between this community-oriented idea of anarchy on the one hand and the notion of anarchy, which prevails on the international plain and which focuses on the sovereignty of individual States on the other hand marks the difference between group-oriented notions of consensus and unanimity and individualist voluntarist notions of consent.

C. Types of Consent in International Law

Stephen Neff distinguishes three kinds of consent: ‘outcome consent’, ‘rule consent’, and ‘regime consent’. Outcome consent refers to a specific situation and it transforms the outcome of this situation. An act that would otherwise be unlawful is transformed into a lawful act due to the fact that the state affected by this act has given its consent. Rule consent refers to the voluntary acceptance of a specific rule of international law. This kind of consent is at the basis of classical positivist and voluntarist conceptions of international law sources and of international law’s validity. Regime consent refers not to a specific rule but, more generally, to a be bound by the rules created within a specific system, e.g. international organization. In the terminology introduced by HLA Hart, rule consent can be characterized as consent to primary rules, i.e. rules involving substantive obligations, while regime consent refers to secondary rules, i.e. rules about rule-making. Arguments involving a generalized kind of consent to the whole of international law have played a key role in the era of formal decolonization, i.e. mainly in the 1960s and 1970s. The ‘newly independent states’ that were created as a result of this formal decolonization argued that they had not consented to previously existing international legal rules and could therefore start with a clean slate. The counterargument, which prevailed, was based on a form of regime consent: International lawyers from the Global North argued that the newly independent states had given a generalized consent to the international legal system by attaining independence as states.

D. Consent and Colonialism

State consent obtained its status as the ultimate source of international legal obligations in the nineteenth century, as international law was established as a 'scientific' discipline and as legal positivists purportedly broke ties with the natural law tradition. The nineteenth century was also the time during which European States formalized their colonial endeavours. Consent as a foundational principle of international law was supposed to flow from State sovereignty. Consequently - but not incidentally - there was no place in nineteenth-century positivist accounts of international law for consent of people and communities that were not organized in the form of European States.

On the other hand, colonial powers used a formalized notion of consent to legitimize their claim to colonial domination. While European States did not recognize indigenous polities in the Americas, Africa, and Australia as sovereign entities with the power to contribute to international law-making and with the protection that the principle of non-intervention and other corollaries of sovereignty provide, they did recognize indigenous authorities and their capacity to enter into legally binding obligations when it came to formally ceding title to land. This practice entirely neglected the coercive circumstances that accompanied formal declarations of consent.

Contemporary international legal rules take into account indigenous peoples's rights by requiring their free, prior, and informed consent regarding policies and projects that directly affect them. Key international instruments that explicitly guarantee the right to free, prior, and informed consent for indigenous peoples include the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), International Labour Organization Convention 169 (ILO 169, Article 6), and the Convention on Biological Diversity (CBD, Article 10(c)). According to Article 19 UNDRIP, 'States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them'. The UN Office of the High Commissioner for Human Rights has published the following guidelines on the meaning of free, prior and informed consent:

• 'Free implies that there is no coercion, intimidation or manipulation.

• Prior implies that consent is to be sought sufficiently in advance of any authorization or commencement of activities and respect is shown to time requirements of indigenous consultation/consensus processes.
• Informed implies that information is provided that covers a range of aspects, including the nature, size, pace, reversibility and scope of any proposed project or activity; the purpose of the project as well as its duration; locality and areas affected; a preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks; personnel likely to be involved in the execution of the project; and procedures the project may entail. This process may include the option of withholding consent. Consultation and participation are crucial components of a consent process.'

E. Limits on State Consent under Contemporary Positive International Law

The most important limits on state consent under contemporary positive law are jus cogens according to Article 53 VCLT and Article 103 of the UN Charter. Both of these norms establish a hierarchy of rules by limiting states' ability to enter into and uphold agreements that conflict either with jus cogens or with the UN Charter. Jus cogens, or a peremptory norm of general international law is, according to Article 53 VCLT, 'a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character'. This means that states cannot modify jus cogens through other treaties or through customary law. Examples of jus cogens include the prohibition of genocide, crimes against humanity, slavery, and torture, and the principle of non-refoulement. Art. 103 of the United Nations Charter is another key aspect of limits to state consent in international law. This article provides that in the event of a conflict between the obligations of a state under the Charter and its obligations under another international agreement, the obligations under the Charter shall take precedence.

F. 'Sexing' Consent

This section introduces Siobhán Airey's work on 'sexing' consent and thus provides an example of how international law can be informed by feminist theories beyond questions that directly involve gender.

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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A. Heading

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Max Milas

Required knowledge: Precedent in Domestic Law, Sources of International Law, Interaction

Learning objectives: Evaluating the relevance of cases in international law, researching international cases, applying cases depending on role and objective.

Cases are not only a "subsidiary means for the determination of rules of law" in international law, of the ICJ Statute, but also an influential means of communication in the practice and research of law. For this reason, it is all the more surprising that all popular textbooks of public international law include a section on the relevance of cases, but no section on how to engage with judicial decision as a student, practitioner, or scholar of international law. The following chapter attempts to change that by discussing the relevance of cases, presenting tools to research cases, and introducing methods to use cases in international law.

A. Relevance of Cases in International Law

According to the traditional reading, cases are one of the four main sources to determine rules of international law. Both judges and scholars of international law deal extensively with prior domestic and international decisions in their rulings. Finding and analyzing cases is therefore one of the main tasks of international lawyers.

I. Decisions of International Adjudicative Bodies

On a strict reading of Article 38(1)(d) of the ICJ Statute, judicial decisions are only subsidiary sources of international law.

Example for judicial decisions as sources of international law: Article 38(1)(d): "The Court […] shall apply: subject to the provisions of Article 59, judicial decisions […], as subsidiary means for the determination of rules of law.”

At first glance, this reserved importance is confirmed by the absence of precedents. As cases are generally binding only between the parties involved in the dispute, not against uninvolved parties, no formal concept of precedent exists in international law.. Therefore, the ICJ's reasoning in the Land and Maritime Boundary between Cameroon and Nigeria is not surprising:

Example for precedent in international law: Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections): "It is true that, in accordance with Article 59, the Court's judgments bind only the parties to and in respect of a particular case. There can be no question of holding Nigeria to decisions reached by the Court in previous cases. The real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases."

This first glance, however, belies the actual realities of international law. Cases shape the modern international legal order at least as much as treaties and customary international law. Courts base their decisions on previous cases to build a coherent system, scholars use cases to adjust their approaches to the realities of international law, and commissions use cases as food for thought when codifying law. This applies not only to judicial decisions but also to communications of commissions, committees, and other quasi-judicial bodies.

International law cases can be differentiated according to different types of applicants and procedures. In most proceedings, two states are in dispute before an international court. This is particularly the case with the ICJ and ITLOS. Private parties can also file complaints against states before international human rights courts and investment protection tribunals. Additionally, prosecutors can file cases against individuals before international criminal courts. Finally, international organizations and states can also seek advisory opinions from international tribunals.

Cases can consist of up to four different parts. Under preliminary objections, courts typically address the jurisdiction of the court, the ability of the plaintiff to bring the case to trial (so-called standing), and other admissibility requirements. Under merits, courts present their reasoning and the result of the case. Under reparations, most courts specify the consequences their judgement (e.g., reversal of measures, payment of reparations). Under interpretation, courts may, at the request of the applicant, clarify how a judgment is to be interpreted and whether the respondent has fulfilled its obligations.

II. Domestic Cases in International Law

Domestic court decisions are also covered by 38(1)(d) of the ICJ Statute. It should be noted, however, that domestic decisions are rarely cited. While international decisions are usually cited to ensure a supposed uniformity of the international legal order, the use of domestic decisions often serves to prove customary international law and to secure acceptance by states. By discussing domestic decisions, courts signal to states that their legal traditions are being taken seriously. For this reason, a thorough research on domestic decisions should not only focus on decisions of the usual suspects, but should strive for representativeness.

Although citations are aimed at securing acceptance of international law by all states, studies on citation practices of international courts and textbooks show that primarily cases from Australia, Canada, China, France, Israel, South Africa, the United Kingdom, and the United States are cited. Cases from jurisdictions outside the Global North are very rarely cited. For example, in Arrest Warrant, the ICJ deals solely with the UK House of Lords and French Cour de Cassation. In Jurisdictional Immunities, the ICJ cites decisions from 16 countries in the Global North (Austria, Belgium, Canada, France, Germany, Iceland, Ireland, Italy, New Zealand, Poland, the Netherlands, the United Kingdom, United State, Slovenia, Spain, Switzerland), one regional human rights organization of the Global North (Council of Europe) and only one country in the Global South (Egypt). The White & Case guide for Jessup Moot Court participants on “Researching International Law” echoes this practice and recommends considering decisions from Canada, Australia, and New Zealand for factual matters involving indigenous rights as “those countries have significant indigenous populations.", while ignoring Central and South African and South American experiences in addressing indigenous rights.

Admittedly, there are plausible reasons for this: in some cases, only decisions from certain jurisdictions will exist, decisions in English are easy to understand for many international lawyers, many databases contain only judgments from these jurisdictions, and the style of reasoning of these courts is similar to the style of reasoning thought in international law departments around the world. However, a thorough research on domestic decisions should not only try to use decisions of a certain group of states but instead should strive for representativeness. Since discussing domestic decisions serves to establish customary international law and to secure States’ acceptance of international law, the cases used for this must consider as many diverse countries as possible. Otherwise, customary international law will remain law of only well-recognized states and the international legal order could, with reasonable grounds, lose acceptance, especially in the countries of the global South.

The research of domestic court decisions does not have to include all countries of the world as this would neither be feasible in terms of time nor valuable in terms of insights. Instead, students should strive for so-called theoretically informed sampling. This requires a three-step approach: Firstly, students should define their object of interest as precisely as possible (e.g., state practice regarding prosecuting institutionalized mass atrocities). Secondly, students can search for states that faced similar problems in their history. Thirdly, students should group the relevant states by legal families, geographic region, and economic as well as democratic development. Lastly, students can select a representative state from each possible combination for their analysis. The reasons for selection should be presented transparently. While this process is more time-intensive than traditional methods, it will not only provide novel insights but also serves to secure acceptance of international law by all states.

B. Researching Cases in International Law

Generally, case law analyses have two different starting points: In the first type of question, the student is asked to respond to a general question of international law. The student can only answer this question convincingly if she also engages with international and domestic cases.

Example for general question of international law: Are entry restrictions against foreigners permissible under international law if they serve to combat the COVID-19 pandemic?

In the second type of question, the student must answer a case-specific question. Although this question seems to refer only to one case, the student can only answer this question persuasively if he also considers comparable cases.

Example for case-specific questions: Why did the ICJ reject state responsibility of Serbia and Montenegro for acts in Srebrenica in the Bosnian Genocide Case?

Thus, for both types of questions, students must find the applicable case law for persuasive reasoning. For this, students can resort to libraries and online databases.

I. Finding Cases in Libraries

The most obvious, but also the most challenging source for researching case law is printed law reports. The main advantage of law reports is that they are published either by the courts themselves or by distinguished individuals and institutions. Students can therefore be assured that law reports reflect the development of case law comprehensively and authentically. The major disadvantage, however, is their format. Law reports are often only available in print. Many universities and students cannot afford them. Furthermore, printed collections can only be scanned and skimmed in a very time-consuming and error-prone process. Students should therefore use them with great caution. Nevertheless, law reports remain a common source to research case law. The following list provides an overview of the most common law reports in international law:

• Covering almost all fields of case law in international law
  • International Law Reports (CUP)
  • Oxford Reports on International Law
• Covering international case law from 1929 to 1945: Annual Digest of Public International Law Cases
• Decisions of the International Court of Justice: UN Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice
• International arbitral and judicial awards: United Nations Reports of International Arbitral Awards
• Decisions of UN judicial bodies: United Nations Juridical Yearbook
• Law of the sea: ITLOS Annual Reports
• Cases in the European human rights system: Tim Eicke (ed.), European Human Rights Reports

Many international law journals also contain sections that summarize and assess cases. However, these journals are only suitable to a limited extent for researching cases. First, journals contain only a sample of current decisions, and second, they focus usually on analyzing individual aspects of the case and not on presenting the entire content of the decision. For this reason, journals are recommended resources for case law analysis only after students have already found the relevant cases for their analysis. Subsequently, contributions to journals can serve as a source of inspiration in one's own analysis of case law.

II. Finding Cases in Online

Nowadays, online databases exist for almost all international courts. Most of these databases enable machine-readable research and parsing of case law. This allows students to filter case law by terms, topics, rules, and years to find the most relevant cases as quickly as possible. For this reason, online databases should usually be the starting point for case law research. Students should use the court's own databases for citations and footnotes as they provide scanned, but original versions of decisions. In this way, students can avoid mistakes in quoting and citing. In contrast, third-party databases are better suited for initial research. These databases often contain more precise options for filtering, so students can use them to find more appropriate cases more quickly. The following list provides an overview of online databases for international courts, tribunals, commissions, and committees:

• Databases covering more than one court or system
  • WorldCourts (open access)
  • World Legal Information Institute (open access)
  • JusMundi (paid, but free for Jessup participants)
  • The Max Planck Encyclopedias of International Law (paid, but free for Jessup participants) with comprehensive summaries of many cases
  • World Court Digest (open access) with a thematic table of contents
• Permanent Court of International Justice: Series A for judgments until 1930, Series B for Advisory Opinions until 1930, and Series A/B for Judgments, Orders and Advisory Opinions from 1931 (open access)
• International Court of Justice: List of All Cases database (open access)
• International criminal courts: ICC Legal Tools Database
• International human rights adjudicative bodies
  • University of Minnesota, Human Rights Library (open access) for almost all international human rights adjudicative bodies
  • UN human rights system
    • UN Treaty Body Database (open access)
    • OHCHR Jurisprudence Database (open access) for United Nations Treaty Bodies
    • UN Human Rights Bodies Database (open access)
  • ECtHR’s HUDOC database (open access) for the European human rights system]
  • Inter-American human rights system
    • IACmHR’s Reports on Cases (open access)
    • Judgements of the IACtHR database (open access)
    • Loyola of Los Angeles International and Comparative Law Review’s Inter-American Court of Human Rights Project database (open access)
    • IUSLAT Database on the Inter-American human rights system (open access)
    • SUMMA database on the Inter-American human rights system (open access)
  • African human rights system
    • Cases of the African Court on Human and Peoples’ Rights (open access)
    • Communications of the African Commission on Human and Peoples’ Rights (open access)
    • Database and commentary on jurisprudence of the African Court on Human and Peoples' Rights (open access)
    • African Human Rights Case Law Analyser (open access)
• Other fields of international law
  • International Commercial Law: Case Law on UNCITRAL Texts database (open access)
  • International Centre for Settlement of Investment Disputes: ICSID database (open access)
  • International trade dispute settlement bodies: | WTO Dispute Documents database (open access)
  • International Tribunal for the Law of the Sea: ITLOS Document Search (open access)
  • Intellectual Property Law: WIPO Lex (open access)

To use these databases most effectively, students should think of key phrases that describe the problem to be solved as concretely and as briefly as possible. In some cases, the relevant phrases already emerge from the questions. For instance, our first example asks about the legality of entry restrictions under international law. A student could search the databases for the keywords "entry restrictions" and synonyms. However, this is usually not sufficient to find all cases that are relevant to solving the problem. Instead, students should also search for secondary literature in parallel. In particular, students can use Google, Google Scholar, encyclopedias of international law, the search engines of the major international law publishers (esp. CUP and OUP), and international law blogs for the keywords. After reading suitable articles in journals, books, blogs, and encyclopedias, students should have a deeper understanding of the legal issues. The keywords for the databases can then be adjusted.

This literature review is also particularly important if the question does not contain specific phrases that can already be used as keywords for databases. For instance, our second example asks solely about the lack of state responsibility of Serbia and Montenegro. It would be very tedious to search the databases for "state responsibility," as the keywords are still too general. Instead, students should first read the relevant case (Bosnian Genocide Case) and literature to be able to identify the key legal issues. After reading the case and literature, students can recognize that, among other issues, the question of attribution of private acts is crucial for the state responsibility of Serbia and Montenegro. For this issue, the ICJ has been using the "effective control" test since Nicaragua, whereas the International Criminal Tribunal for the former Yugoslavia (ICTY) uses the "overall control" test. These two phrases (“effective control” v. “overall control”) can be used as keywords for the literature review and databases to locate cases relevant to answer the question.

Some databases also offer to search cases by year, topic, and rule. This is particularly helpful in areas of law with many decisions to filter out the relevant cases. However, as international adjudicative bodies also draw inspiration from decisions outside their own system, students should not only search for cases in the field of law of the question but also look for comparable problems and decisions in other fields of international law. Students should repeat their research several times during the processing period to reflect their take into account their increased knowledge and adjusted keywords.

III. Recommended Guides

This short section was intended to provide students with a first insight into the tools and methods of researching cases. Many universities have also produced comprehensive open-access guides on researching case law in international law. The following list provides an overview of recommended guides:

• Columbia University, Researching Public International Law
• UC Hastings Law, International Law Research Guide: Analysis of International Law
• NYU Law, International Law: General Sources: General tools for finding cases on international law
• The University of Melbourne, Finding International Cases

C. Using Cases in International Law

In order to apply the cases found, students should understand the case in a first step and then determine the relevance of the case for their assignment and argument in a second step.

I. Understanding Cases

After finding the relevant cases, students must understand cases. The tools used to understand cases do not differ, but the way the tools are used does, depending on the role and objective. Every case analysis starts with reading the case as well as annotating and summarizing it (at least in thought). However, the reading, as well as the objects of markings and summaries, differ depending on the position and task of the analyzing student.

In international law, two distinct types of tasks exist in which the analysis of cases becomes relevant. In one case, students must analyze cases strictly doctrinally. This is particularly the case in moot courts and when students have to write a case brief or solve a case from the standpoint of the judge. In this type of task, the focus of analysis should be on locating the cases in the broader context of the relevant field of international law. Students can criticize decisions, provided that the judgments depart from the established canon of the field. In most instances, however, students should instead focus on distinguishing cases or establishing exceptions and qualifications of rules derived from judgments. In the other case, students can analyze cases not only doctrinally but also disruptively. This is particularly the case when students analyze cases not as members of an institution (be it as applicant/respondent or as a judge) but as external observers (e.g., in a critical case analysis). In this task, students should also locate the case in the broader context of the relevant field of international law. However, the primary analysis does not end there. Instead, students can analyze the case in light of decisions from other fields of international law, critical methodological approaches (e.g., TWAIL), or interdisciplinary insights. Nonetheless, students should be aware that these two types of tasks represent two extreme positions of case analyses. In between, there is a continuum of tasks that combine elements from both types.

Regardless of the type of assignment, any case analysis begins with understanding the cases provided or identified. In this respect, a two-tiered approach can significantly facilitate the understanding of cases: Students should first read and annotate the case and secondly summarize it. However, there is no universal approach to reading and summarizing a case, so students can compile their own method based on existing approaches.

1. Reading and Annotating a Case

Before reading the case for the first time, students should make sure that they have understood the assignment as the type of task is crucial for the approach of case analyses.

In a second step, students can use the techniques of "skimming” and "scanning" to obtain a first overview of the case. Skimming provides students with a first glimpse of the overarching content of the judgment. Students should not read the entire judgment or entire paragraphs but instead focus on the title and date of the decision, the parties, subheadings, and the first and last sentences of sections. Scanning is used to locate relevant passages within the judgment and then read it. For this purpose, students can be guided by subheadings as well as first and last sentences of sections from skimming and then read those passages that seem relevant to answering the task. In a third step, students can read and annotate the case. Annotations are used to visually structure the case and to be able to understand it with little effort even in retrospect.

International law cases tend to be very long, so highlighting should be used sparingly. Instead, students should focus on marginal notes by pen when annotating cases. Students can organize the case in the margin into facts, procedural history, admissibility, merits, and reparations. The use of different colors for each level can facilitate subsequent skimming and scanning. Different levels can also be separated from each other by corresponding colored brackets. This keeps the text tidy for underlining and highlighting. In addition, students should write their first thoughts in the margin so that they will not be forgotten. Highlighting should be limited to parties, core issues, core arguments, results, and separate opinions. A separate color should be used for each of these as well.

In the final step of reading and annotating, the case should then be read again to review one's annotations and prevent mistakes or oversights. Depending on the assignment, it might be useful to read not only the case itself but also case summaries. Many courts provide these summaries themselves. But also journals or encyclopedias of international law contain case summaries. By supplementing one's own thoughts with thoughts from other lawyers, one's own idea of the case can be verified.

2. Summarizing a Case

After several readings of the case, the case can be summarized at least in thoughts, and for some assignments, in writing. As a rule, this step is not relevant for examiners, but for students. The case summary should comprehensively, but briefly, present the most important aspects of the case. Only by this step can students verify whether they have really understood the case. In addition, it serves to recall the case later without much effort. Thus, the case summary, in addition to the case reading, is a key prerequisite for using cases in international law.

A recommended format for case summaries is the so-called case brief. This is a method from common law legal systems for summarizing cases. A case brief divides the case into general information, facts, legal issues, results, reasoning, separate opinions, and interpretation. Under general information, the title and date of the decision, parties participating in the proceeding, and areas of law involved are specified. Facts include both the underlying dispute of the case and the procedural history. Legal issues should be identified independently of the facts of the case. Results indicate judicial holdings regarding the legal issues and legal reasoning provides the rationales for these holdings. The last two points (separate opinions and interpretation) depend on the assignment. If relevant to the task, separate opinions should be summarized in an assignment-specific way and the interpretation should explain how the judgment can be used to answer the question (including link to prior and subsequent cases, criticism of the judgment, effect of the case on the social environment). A case brief should be no more than two pages long. The focus should be on the results, legal reasoning, and interpretation.

II. Determining the Relevance of a Case

Before students ultimately apply the case, they should determine the relevance of the case for their assignment. The importance of cases for the international legal order was already explained at the beginning of this chapter. Although there is no formal doctrine of precedent in international law, cases shape both the determination of rules and their interpretation. However, this does not imply that judgments which at first glance support one's own argumentation should be used for one's own reasoning without hesitation. Likewise, cases that contradict one's own argumentation at first glance are not a final farewell to one's own reasoning. Instead, cases can be evaluated from both doctrinal and critical perspectives before they are finally presented. The appropriate balance between doctrinal and critical evaluation perspectives depends on the assignment at hand and cannot be determined in the abstract.

1. Approaching Cases Doctrinally

From a doctrinal perspective, there are three elements in particular to consider when students want to determine the relevance of the case to their assignment and argument: First, the applicability of the case to the assignment must be determined. In addition, obiter dicta and individual opinions must be considered.

a) Distinguishing Cases

Before classifying a case as being for or against their reasoning, students should answer two questions: Firstly, students can investigate whether the facts of the case under investigation correspond to the facts of the assignment (so-called factual distinguishing). It may well be that the result and reasoning of a case are clearly against one's own argument, but the cases are so different that the rule and reasoning cannot be transferred automatically. For this, students must closely examine the facts of the case and the assignment and identify similarities that allow the rule to be applied or differences that hinder the rule’s application. Second, the legal elaborations in the case may contain hidden qualifications or exceptions that preclude the application of a case that appears to fit or that justify the application of a case that does not appear to fit the assignment (so-called legal distinguishing). Finally, reasoning in old cases can also be displaced by new legal developments. For a persuasive argument, students should always acknowledge the cursory fit or lack of it in a first step, and then explain why the case actually does or does not fit in a second step. From a doctrinal perspective, it is usually unconvincing to frame a case as false. Instead, these two techniques of factual and legal distinguishing should be employed to exploit the case for one's own argument.

b) Obiter Dicta

Legal interpretations of courts that are not relevant for deciding the case (so-called obiter dicta) may also be considered in analyzing cases. For example, the ICJ defined opinio juris in an obiter dictum in North Sea Continental Shelf and defined obligations erga omnes for the first time in an obiter dictum in Barcelona Traction. In both instances, the legal reasoning was not relevant to the outcome of the case, and yet both obiter dicta continue to shape the international legal order to this day. However, it is disputed whether obiter dicta are "judicial decisions" or "teachings of publicists" in the sense of Art. 38(1)(d) Statute of the ICJ. For this reason, obiter dicta should be treated cautiously. For example, ITLOS in Delimitation of the Maritime Boundary in the Bay of Bengal refused to apply an obiter dictum of the ICJ in Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea.

c) Individual Opinions

Many domestic legal systems allow judges to attach individual opinions to the majority decision if they disagree with the majority’s reasoning (so-called concurring opinion) or result (so-called dissenting opinion). Likewise, almost all international adjudicative bodies permit judges to publish individual opinions.

Example for a clause permitting individual opinions: Article 57 ICJ Statute: "If the judgment does not represent in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion."

Although individual opinions have not prevailed within the adjudicative body and are thus not enforceable, they can contribute to the development of legal standards. Individual opinions can assist in interpreting the majority opinion. Concurring opinions often clarify or generalize the court's reasoning. This facilitates the application of the court's reasoning to similar cases. Dissenting opinions not only reveal the rationale for the majority opinion but also criticize this majority opinion. Thereby, dissenting opinions are a good starting point for a critical engagement with majority opinions.

Example for an influential individual opinion: Judge Sir Hersch Lauterpacht delivered two indivdual opinions in Norwegian Loans and Interhandel against the legality of so-called self-judging reservations to the compulsory jurisdiction of the ICJ, which later became accepted by the majority in Fisheries Jurisdiction (Spain v Canada).

While the relevance of individual opinions should therefore not be underestimated, they should be treated cautiously. Firstly, they are just not part of the majority opinion and thus neither binding for the parties nor enforceable nor “subsidiary means for the determination of rules of law” according to Article 38(1)(d) Statute of the ICJ. Second, individual opinions are frequently results of national or amicable biases.

2. Approaching Cases Critically

From a critical perspective, it is much more difficult to recommend generally accepted approaches. However, one common feature of many critical approaches is to view cases as social facts rather than legal ones. Critical perspectives are therefore not limited to the application of doctrinal standards. Instead, critical approaches address, among other aspects, the sociological conditions of human decision-making in adjudicative bodies, (post-)colonial imprints and effects of decisions, economic conditionalities of law, and ecological consequences of judgments. While the application of these perspectives requires an engagement with their basic methodological assumptions, they usually enrich a case law analysis enormously by unmasking the supposed neutrality of doctrinal methods. In the following chapters, this textbook provides insights into how to employ interdisciplinary, (post-)colonial, feminist, and Marxist approaches to case law analyses.

Further Readings

• Acquaviva G and Pocar F, "Stare decisis", in Anne Peters (ed), The Max Planck Encyclopedias of International Law (Oxford University Press 2021)
• Andenas M and Leiss JR, ‘The Systemic Relevance of “Judicial Decisions” in Article 38 of the ICJ Statute’ (2017) 77 ZaöRV 907
• Bjørge E and Miles CA (eds), Landmark Cases in Public International Law (Hart Publishing 2017)
• Linos K, ‘How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics’ (2015) 109 American Journal of International Law 475
• Roberts A, Is International Law International? (Oxford University Press 2017)
• Shahabuddeen M, Precedent in the World Court (Cambridge University Press 1996)

Conclusion

• Cases are one of the four main sources to determine rules of international law. Finding and analyzing cases is therefore one of the main tasks of international lawyers.
• The most obvious, but also the most challenging source for researching case law is printed law reports. Nowadays, online databases exist for almost all international courts. Most of these databases enable machine-readable research and parsing of case law. This allows students to filter case law by terms, topics, rules, and years to find the most relevant cases as quickly as possible. For this reason, online databases should usually be the starting point for case law research.
• In order to apply the cases found, students should understand the case in a first step and then determine the relevance of the case for their assignment and argument in a second step.
• Before students ultimately apply the case, they should determine the relevance of the case for their assignment. Although there is no formal doctrine of precedent in international law, cases shape both the determination of rules and their interpretation.
• From a doctrinal perspective, there are three elements in particular to consider when students want to determine the relevance of the case to their assignment and argument: First, the applicability of the case to the assignment must be determined. In addition, obiter dicta and individual opinions must be considered.
• From a critical perspective, it is much more difficult to recommend generally accepted approaches. However, one common feature of many critical approaches is to view cases as social facts rather than legal ones.

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This chapter introduces basic elements of interdisciplinarity in public international law. While the majority of international law scholarship is still dominated by doctrinal research, adopting interdisciplinary perspectives on the theory, history, and practice of international law has become increasingly important for students of international law. Students are increasingly requested to not only familiarize themselves with interdisciplinary methods, but also apply those insights to international law. However, most programs lack a thorough introduction to the conceptual toolbox of interdisciplinary research. This chapter aims to remedy this gap and show students why, when, and how to engage in interdisciplinary research projects.

In this chapter, we will first show the potential of interdisciplinary perspectives and identify the respective questions which suit a interdisciplinary investigation (A.). In a second step, we give an overview of nine different types of interdisciplinary research in international law, introducing the dominant approaches, its main proponents and selected examples of interdisciplinary research (B.). In a third step, we introduce the various methodological tools available for interdisciplinary research, ranging from comparison to archival research as well as various options of quantitative as well as qualitative methods (C.). Ultimately, in the fourth step, we sketch some of the major pitfalls and challenges which students encounter in designing interdisciplinary research projects and show how to avoid them (D.)

Test your knowledge in our learning area.

A. Basics for Interdisciplinarity in Public International Law

I. What is Interdisciplinarity?

The term "interdisciplinary" has become ubiquitous in legal research in the last decade It "can be seen everywhere, ranging from funding calls, research agendas, grant applications, conference themes and internet blogs to rhetorical manoeuvres." Yet, the more the term gained in popularity, the fuzzier its meaning actually became.

To provide a broad categorization, interdisciplinarity denotes research projects which aim at synthesizing and harmonizing knowledge and methods between two or more disciplines into a coordinated and coherent whole. It stands opposite of intradisciplinarity, which describes working exclusively in the boundaries of one single discipline. Interdisciplinarity thus requires that the general, theoretical as well as empirical assumptions between two or more disciplines are not in contradiction to each other. Moreover, it necessitates a strong, substantial and methodological understanding of those disciplines, which often takes significant amount of time and exposure to the relevant scholarly community and its writings. True interdisciplinarity, in this sense, is actually very hard to achieve. In contrast, most international legal scholarship takes the form of transdisciplinary or multidisciplinary research, the latter describing persons from different disciplines working together on a common project, each drawing on their own disciplinary knowledge and expertise. This is usually achieved by multidisciplinary teams of authors. Transdisciplinarity ultimately attempts to create a unitary common framework among two or more disciplines, to find common research questions, harmonize definitions, and identify explanations which stretch over the scope of just one disciplinary horizon.

Critics of interdisciplinary scholarship argue that the emergence of x-disciplinarity (inter-, intra-, trans- and multi-disciplinarity) dilutes disciplinary boundaries, threatens the idea of a specialized profession and challenges central understandings such as legal autonomy. While those concerns are valid, they are based on a fictions understanding of disciplinary silos in which one can clearly distinguish between one discipline and the other. Often, "[s]cholars describe their home discipline as e.g., a language, an epistemology, an academic practice or a culture; and interdisciplinarity as conceptual blending, metalanguage, boundary crossing, trading zone, knowledge or practice sharing, alternative methods and comparison of disciplinary tools." In reality, disciplinary boundaries in law have always been fluent. Disciplines are not homogenous entities but consists of a variety of approaches and sub-disciplines. In particular, overlaps, either in substance, approach, or method, between international law and its neighboring disciplines from the social sciences and humanities are highly common. International law thus suits itself to interdisciplinary approaches as many research questions necessitate at least a contextual understanding of law.

Nevertheless, this should not underestimate the politics behind the turn to interdisciplinarity. In the words of Jan Klabbers, "interdisciplinarity is a politically charged activity in itself." Interdisciplinary approaches might reproduce, disguise, or even strengthening existing power relations. Adopting an interdisciplinary research agenda and methodological toolbox further requires additional opportunity costs for marginalized scholars which exacerbates structural inequalities. Interdisciplinarity can thus rupture disciplinary gatekeeping and democratize the creation of new knowledge on fundamental questions of international law, but also create additional barriers and adopt a marketized logic in which research is guided by the use of fancy methodologies rather than research questions.

II. Why do interdisciplinary research?

Classical, doctrinal scholarship in international law usually adopts an internal view on law. The internal viewpoint takes the perspective of an insider to law, a law student, a professor, or practitioner which was trained and socialized into the legal community. They participate in the legal discourse, are preoccupied with legal arguments, and decision-oriented. In contrast, interdisciplinary scholarship promotes an external view of law. It takes the perspective from the outsider, who observes the processes, structures, and norms of international law in action. The external view thus takes into account both the relationship of law to the political, economic, or social context, as well as normative questions related to international law. To do so, it borrows insights and methodologies from neighboring disciplines.

Interdisciplinary research (just as all other forms of x-disciplinarity) thus allow us to ask questions which go beyond the internal logic of law. It does not limit itself to how the law is, but also why the law has been applied in a certain way, and how it should be in the future. Interdisciplinary approaches enable the identification of causalities or at least indicate possible explanations for certain situations or developments in international law. They can also illuminate underlying patterns and structures which have been overlooked, thus benefiting critical engagement with International law and providing support for improvement via interpretation or further development of the law.

III. How to do interdisciplinary research?

Naturally, there are myriad options to analyze international law from interdisciplinary perspective and we will give you more insights in the following section. However, in general, interdisciplinary research requires a more structural approach to international legal research. One can generally distinguish between five steps:

First, it is of utmost importance to familiarize yourself with the respective approaches in depth before the start of the research project. This requires to understand the underlying epistemological considerations, fundamental concepts, and classic authors which have shaped the particular approach. Moreover, it is helpful to map the existing interdisciplinary engagement with international law. This is important not only to assess the state of the discipline and the topics that are being discussed, but also to identify the respective community which underpins the respective research project. One can thereby learn how to approach the same topic from different angles, how to transpose fundamental concepts to the study of international law, and to get socialized into the respective academic and writing style.

Secondly, in contrast to classical, doctrinal research, interdisciplinary research embraces a more transparent and open structure. In general, the scholar will first identify the research question(s) and possible hypotheses and counterhypotheses before analyzing the data. That does not not mean that the availability and access to source material cannot guide the respective research design, but it means that the data does not predetermine the research questions. This is different to doctrinal research, in which the identification of structures and the categorization of cases is a major research aim.

In a third step, it is important that the respective researcher openly and transparently justifies its research design. Interdisciplinary scholarship often includes an explicit methodology section. In this section, the author justifies, among others, why this particular approach is useful for the study of international law, how this influences the research question(s), which factors guide the identification of hypotheses, what were the criteria required for the selection of cases, which methodologies are going to be applied, how is the data being gathered, and what are the limitations of this particular method. The author can also identify how the project relates to existing research or conflicting approaches and clearly limit the research agenda.

Fourthly, the researcher gathers the necessary data. Again, a variety of options exist, ranging from comparative research designs, to archival work, as well as qualitative and quantitative approaches, which will be highlighted in section D. This step might take significant time and require additional resources such as travel, software etc. It is also heavily reliant on factors outside of the control of the respective researcher such as access to sources, for instance archives and interview partners.

In a fifth and final step, the data will be evaluated with respect to the aforementioned research question. This often includes giving a systematic overview and highlighting particularly interesting or unexpected factors. Hypothesis can be confirmed or refutes. Moreover, it is possible to consider some possible explanations for particular outcomes, reaffirm the limitations of the results or identify options to expand on the research in future projects.

B. Types of Interdisciplinary International Law Scholarship

I. International Law and History

Interdisciplinary study of international law and history is perhaps the most common form of interdisciplinarity in the study of international law. This is because it’s a form of study that ties deeply with what is done through doctrinal legal research. Because doctrinally legal research necessarily requires placing the principles espoused by legal instruments or relevant international court decisions in the context that they were made, in order to understand how they would apply in a new context, the study of international law lends itself towards historical enquiry. A prime example of this type of scholarship is the work of the late Professor James Crawford.

The purpose of international law and history interdisciplinary enquiry is not to determine the “true” or “original” meaning of a piece of international law, in line with the originalism doctrine espoused in US Constitutional Law. Rather the goal of historical enquiry and international law is to disrupt accepted narratives that established “legal truths” have always been in existence or always interpreted in a certain way. Recent examples of this approach can be seen in Cristian van Eijk’s counterhistory of the Outer Space Treaty, the debates over the nature of jurisdiction granted under UNCLOS over piracy (whether it grants jurisdiction over terrorists, and whether the jurisdiction is grounded in the heinous nature of the crime), and how the phrase “private ends” should be interpreted in the context of Article 101 of UNCLOS.

II. International Law and Sociology

The primary goals and purposes of legal sociology (as both a discipline and method) is “to provide insight into an understanding of the law through an empirical study of its practice.” This particular field of interdisciplinary study of international law finds its origins in the work of Pierre Brourdieu, Émile Durkheim, and Max Weber. In terms of empirical and theoretical studies into the practice of international law sociology is relatively small or niche when compared with International Law and International Relations (discussed in this section in conjunction with International Law and Political Science). This is because while sociology is a methods and theory based discipline (meaning that there is a battery of defined available methods and that new methods need to be sufficiently tested, justified, and articulated to be considered valid included, and that social theory is directly informed by empirical observation of the world), political science and international relations are subject matter based disciplines and thus have more scope as they adopt the different methodologies from other disciplines such as sociology.

Sociology study of international law can be done through quantitative, qualitative, or theoretical methods (although social theory enquiries into international law tend to sit more comfortably within legal theories than within sociology of international law). The key features of a good sociological enquiry are the identification of a clear research question, along with a hypothesis what conclusion will result from the data; and identification (usually tacit but sometimes overt) of the bias is that the author is bringing to the data gathering and analysis; and identification of what method is being used (noting that methods are simply tools and research is toolbox, and one should be wary of scholars who defined their research in terms of their methodology rather than in terms of their discipline); and there needs to be an articulation of why the method that is being chosen is the best method for addressing the research question at hand.

III. International Law and Political Science

Political science perspectives on international law primarily focus on the "development, operation, spread, and impact of international legal norms, agreements, and institutions." They include theoretical and conceptual framework as well as political science methods, in particular qualitative and quantitative approaches. Its expands the study of international law to study the role of political organization, government, and structures upon which international law relies. While its beginnings can be traced back to the early 20th century, the most prominent political science approach to international law is international relations.

International relations theories usually highlight three facets of international law: power, international cooperation, and domestic politics. Yet, the relevance and understanding of those factors depends on the different strands of international relations theory. In general, on can distinguish between at least four major strands: realism, institutionalism, liberalism, and constructivism. Realism generally focuses on state power and state interest. Hence, international law has no clear relevance for realist IR scholars other than as an instrument in the hands of powerful states. States might comply with international law as long as it correlates with their domestic interests. Institutionalists, on the other hand, generally assume that it is in the rational interests of states to cooperate with other states. To do so most beneficially, states create long-lasting commitments via international regimes or institutions build on the structures of international law. International law thus helps to solve cooperation problems between states. Liberal theories of international law focus on a buttom-up dynamic. They analyze how the preferences of domestic or transnational actors create international law. Constructivist approaches generally focus on the normative and ideational structures such as identities, interests, and belief systems which influence the behavior of actors. They consider international law as a reflection of social purpose, not as much depending on material interests. International law and international politics are thus mutually constitutive, should the underlying political or social interests change, so will international law.

Since the end of World War II and until the 1980s, the relationship between international law and international relations has been fraught with tensions. While focusing on closely related issue areas, both disciplines have been developed along related but usually not intersecting tracks. International relations scholars generally disregarded the relevance of international law for actually influencing the behavior of states and structuring, while international lawyers emphasized that legal autonomy requires detachment from political processes and rather focused on the interpretation of particular legal rules by judicial actor not on the implementation or compliance of specific rules. However, with the proliferation of international cooperation, the end of realist Cold War politics, and the rise of the US-backed liberal internationalist world order, a vocal community of IL-IR scholars emerged in the 1990s. They included, among others, Kenneth W. Abbott, Robert O. Keohane, and, most prominently, Anne-Marie Slaughter, who argued that there are "three ways that lawyers are using materials and insights from IR theory: to diagnose substantive problems and frame better legal solutions; to explain the structure or function of particular international legal rules or institutions; and to reconceptualize or reframe particular institutions or international law generally." Since then, IL-IR literature has been flourishing. Prominent research strands include compliance, legitimacy, the emergence of norms as well as their contestation, and the proliferation of international courts.

IV. International Law and Literature

International Law and Literature as an interdisciplinary field of study follows the same paths and approaches as the Law and Literature movement more generally. The general goal of International Law and Literature interdisciplinary research is to use literature to advance understandings of international law in some way. While this is generally done through the pursuit of academic scholarship, it can also be done through the production of works of fiction. Classic examples of using works of fiction to discuss concepts of international law and justice are the work of China Miéville, and The Reader by Bernhard Schlink.

When engaging in academic approaches to International Law and Literature interdisciplinary work, authors tend to do one of three things with the literature aspect of this scholarship: 1) use works of fiction to explain and make accessible concepts of international law to non-experts; 2) use works of literature as conceptual data to explore societal responses to international law; or 3) use literature as a tool of jurisprudence in order to develop legal theory on particular issues. In international law and literature, as with all law and literature interdisciplinary study, the tool of the literature is to help explore understand the concept of body of law in a new or more accessible way.

V. International Law and Economics

The economic analysis of international law has emerged in the 2000s, but builds on the more established domestic "Law and Economics" literature starting from the 1960 in US academia. Its primary aim is to apply economic theory to problems of international law. The core assumption of the economic theory is the rational actor model. Economic analysis of international law thus assumes that states are self-interested and make decisions among alternatives to maximize their gains. They act according to the rational choice model in the design of international agreements and the creation of international law. Methodologically, international law and economics scholarship often applies quantitative methods based on large datasets, as well as experiments.

The perspective of international law and economics sheds lights on two facets of international law: the importance of self-interest for state behavior and how this affects how states design and comply with international law. They argue that states rely on international cooperation, hence, international law serves as an instrument to structure this cooperation for the benefit of the participating states. This means that states create international legal rules which serve their benefit. International agreements can thus be understood as a type of prisoner's dilemma, which poses the most benefits when all parties to the treaty cooperate. The economic approach to international law has thus been focused on the different modes of treaty making, the design of specific clauses such as treaty exits, international dispute settlement, and the legitimacy of customary international law. Moreover, economic analyses also investigated how particular rules of institutional design might foster compliance. In the absence of coercive enforcement mechanisms, rules stipulating compliance must change the cost-benefit ratio for the respective states. This can include requirements of reciprocity, retaliation, and reputation. Moreover, economic analysis of international law has been applied to understand and improve the functioning of various regimes and sub-fields of international law, in particular trade law, human rights law, investment law, and environmental law.

VI. International Law and Psychology

International law and psychology has been developed in the 2010s and primarily adopts insights of behavioralism and cognitive psychology to international law. Thera are apparent overlaps between the emerging movement of behavioralist international law and the earlier economic analysis, not only amongst its main proponents but also its substantive questions and methods. Its main difference to economic analysis, however, concerns the rational choice paradigm. Psychological or behavioralist analyses do not assume perfect rationality, but rather want to empirical explore how the different actors in international law actually behave, hence, their aim is to identify "empirically grounded concepts of real, observed rationality."

Behavioralism thus complements the economic approach by demonstrating that the action of individuals is often not determined by the maximum utility but influenced by several bias. This includes, for instance, availability bias when people think that the risks are greater when they can easily recall a particular incident, hindsight bias when "people tend to overestimate the initial probability of an event once they are aware that the event has occurred", or omission bias which explains why "people feel greater responsibility for outcomes that they have actively brought about than for outcomes that they cause by omission". To understand how those biases influence the behavior of individuals, behavioralist often rely on experiments. Yet, the application of experimental insights upon the behavior of states in international law is more challenging than to powerful individual decision-makers such as heads of state, diplomats, or judges. Behavioralist insights have been applied to a variety of international law issues, for instance, on treaty design, treaty interpretation, international trade disputes, bilateral investment treaties, legal theory, international humanitarian law or how to incentivize compliance via rewards.

VII. International Law and Anthropology

Anthropological analysis of international law have been primarily developed after the 1990s, however, earlier works on human rights in socio-cultural contexts can be identified. Anthropology and international law thus attempts to understand the social and cultural contexts of international law, often via ethnographical fieldwork in various local socio-cultural settings. Today, anthropological perspectives are in particular applied to account for the developments in three different international law spaces: the expansion of human rights discourse, the globalization of law, and international organizations.

Anthropological perspectives aim at understanding how international law is produced and how it works by focusing on the individuals and communities which create and are affected by international law. Anthropology thus highlights three overlooked facets of International law: First, it allows an anti-formalist approach to international law, i.e. it can be applied to legal norms notwithstanding if they take the form of hard or soft law, written text or oral order. Secondly, it goes against the state centrism of international law by focusing how individuals and communities as well as non-state actors, corporations, organizations etc create and interact with international law also along transnational lines. Thirdly, it situates the development and function of international law in specific local contexts, thus rejecting the universalist view and allowing for an integration with postcolonial or critical theory. Anthropological perspectives have thus been applied to understand how human rights have spread globally while also being clearly affected by local dynamics, how social movements engaged with struggles over international law, interactions between indigenous law and international law, the role of professionals such as lawyers and judges, as well as case studies of different legal institutions and regimes, for instance in international criminal justice.

VIII. International Law and Language

International Law and Language primarily focusses on the linguistic analysis of international law and its discourses. Its main aim is to uncover the meaning of particular legal provisions by examining how it is being used or understood by different actors. This includes also the study of different languages as well as issues related to the translation of terms. Insights of the linguistic analysis of international law are thus used to understand the drafting, interpretation, and application of legal norms in treaties and jurisprudence.

Linguistic analysis of international law relies on a variety of specialized methods, ranging from qualitative discourse analysis to the quantitative computer-based analysis of large text corpora. Discourse analysis and text linguistics examines the legal text and its surrounding context. Analysis of syntax focus on how different phrases are combined and connected to form part of text structures. Semantics and pragmatics aim to understand the meaning of terms for instance via their original meaning or by differentiating it from closely related provisions. Studies of historical linguistics and etymology investigate how particular terms have been historically developed and interpreted. Lexicography relies on the understanding of dictionaries. Corpus linguistics and computational linguistics aim at handling large amounts of texts to understand the use of certain words or collocations. Sociolinguistics emphasize how social factors such as class, gender, or age influence our language, while forensic linguistic studies how language is used as evidence in legal processes. In international law, linguistic insights have been recently applied to three specific issues: First of all, the study of interpretation of international legal norms. Secondly, the use of references in the decisions of international courts and tribunals as well as self-citation practices in general. Thirdly, another important strand of research critically reflects on the language(s) in which international law claims universality and challenges the English-centrism of international law

IX. International Law and Gender Studies

The overarching goal of Gender Studies is to enquire into the ways that (the sociocultural construction of) gender shapes all aspects of society. As such, Gender Studies as a discipline centred on subject matter much in the same way as the Political Sciences and International Relations. It will often have crossover in terms of methods and approaches to the othered interdisciplinary approaches discussed in this chapter. It could also operate in a framework of legal theory rather than of empirical interdisciplinary enquiry. The common theme of International Law and Gender Studies interdisciplinary research is the use of Feminist and/or Queer Theory as the central lens of the research. For details on this see the chapter below on Feminist and Queer Theory in international law.

C. Methods of Interdisciplinary International Law Scholarships

I. Comparative Method

Comparison has long been a staple in comparative legal research, also in international law. Comparison can be generally understood as a method which aims at contrasting two or more cases to identify parallels and differences. The results are usually focused on a specific phenomenon. Comparisons can be made among a variety of research objects, ranging from very focused case studies and micro-level processes to large-scale, macro-level analyses. However, interdisciplinary insights, e.g. from the social sciences, might further illuminate essential methodological potentials and limitations.

Interdisciplinary research puts significant emphasis on the design of the comparative study. After identifying the research question, the respective scholar generally justifies the comparability of the respective research units. In particular when dealing with a small case study, they provide a thick description of the respective institutions or legal regimes, highlighting similarities and differences, and, if possible, how the researcher aims to account for potential divergences. In the social sciences, most comparisons adopt an inductive method, originally developed by John Stuart Mill in his 1843 book "A System of Logic", to illustrate their causal research hypothesis. This means that they account for an outcome (the dependent variable) as well as possible explanatory factors (the independent variable(s)). This is also called the "most different" or "most similar" cases design. In the former, the two or more cases are different in every relevant characteristic except for the outcome and the explanatory factor, in the latter everything between the two cases is similar except for the explanation and the outcome. Charles Tilly further distinguishes four types of comparative analysis, namely individualizing, universalizing, variation-finding, and encompassing. Individualizing aims at comparing a small number of cases to identify the peculiarities of each case. Universalizing compares cases to demonstrate that every phenomenon follows essentially the same rules and thus to identify fundamental, generalizable theories. Variation-finding applies a medium- or large scale comparison to discover logical differences among instances and establish a standard of variation. Encompassing comparison "places different instances at various locations within the same system, on the way to explaining their characteristics as a function of their varying relationships to the system as a whole."

II. Archival Research

Archival research is generally associated with forms of historical enquiry; however, given the overlap of historical enquiry to other forms of interdisciplinary research, references to archival material will often crop up in various types of interdisciplinary research and even doctrinally research. Primarily the purpose of archival research is a search “for materials that might flesh out the stories and histories of modern rhetoric and composition we were presenting.” Archives can be either physically located or online, but this primary purpose doesn’t change with the venue of the archives. Because the goal of archival work is defined primary sources that flesh out, or improve our understanding of historical narrative, the biggest question related to archival research is the decision about what to include (and perhaps more importantly what to exclude) from a piece of research. Because this is an issue for all forms of empirical research this will be dealt with in more detail below; however, a general guide is that for something to be excluded there needs to be a defensible basis for that decision – is something is relevant to the topic, credible in terms of its origins, as within an acceptable tolerance of verifiability, it likely should be included in the work.

III. Qualitative Research Methods

While quantitative research is an empirical research method grounded in numerically measurable data, qualitative research focuses on more subjective interpretation of more subjective texts. These subjective texts could range from ethnographic observation, interviews (structured, semi-structured, or unstructured), free text answers in surveys, oral histories, historical transcripts (such as official meetings, or speeches), discourse analysis, or participant observations. The valuing qualitative investigations as a form of empirical study is how it allows a researcher to understand why a phenomenon is occurring. This can be contrasted with quantitative based investigations that are more focused on establishing what is occurring.

Which of these methods you might use in a qualitative study entirely depends on the questions you are asking and what you are trying to understand with your research. This will be addressed anon in the section on methods selection below; however, when dealing with qualitative methods one of the key important features is how the selected method is justified as the most appropriate for the research project. Beyond that is of crucial importance that the researcher identify the biases that they have brought to the study (so the reader can factor that into their reading of the analysis). They should also identify how they have made their determinations about what data to include, and more importantly what data to exclude from the study. The value of qualitative studies as a supplement to doctrinal analysis is how it permits an understanding of why certain elements of doctrinal law have been developed, or how they play out when implemented on the ground.

IV. Quantitative Research Methods

Quantitative research methods have been an essential element of the so-called empirical turn in international legal scholarship which combines legal methodology with tools and techniques from the social sciences. Quantitative methods are based on data, which generally means large numbers of texts or codes in international law, for instance from legislation, treaties or jurisprudence. The data is then analyzed to identify the conditions under which international law is formed and has effects. Hence, a major challenge of quantitative methods concerns the collection of data, either manually or through computational methods. For beginners, it is thus advisable to make use of existing databases, either from international courts, international organizations, or academic research projects.

Quantitative research methods can be generally differentiated in four types: First, descriptive research which aims at identifying patterns and structures in the data without necessarily having a hypothesis before data collection. Secondly, correlation-aimed research which wants to determine the extent of a relationship between two or more variables using statistical data. Thirdly, causality-focused research that attempts to establish cause-effect relationships among the variables in the data. Fourthly, experimental research investigates the cause-effect relationship in a study situation in which an effort is made to control for all other variables except one. Those four types are not mutually exclusive but can be combined, however, they come with specific requirements for data collection, for instance most quantitative studies require at least a medium-N or large-N sample size. Hence, in international law, quantitative methods have so far been applied to the jurisprudence of international courts, as well as legal regimes which feature a large number of legal instruments such as international human rights or investment law.

D. Pitfalls and Challenges

I. Finding the Right Method for Your Research Questions

Generally, within law faculties and legal circles, interdisciplinary research in law is referred to under the broad umbrella of “socio-legal” research. One of the biggest hurdles faced by this broad and inclusive categorisation of all non-doctrinal research as “socio-legal” research is that it doesn’t provide clarity on what it is the interdisciplinary research is doing. So, while doctrinal law scholars are notoriously bad at articulating their methodology, often stating “I just read some stuff and then I analyse it”, the ubiquity of the doctrinal method that is ingrained from the commencement of law school means that this inability to articulate methodology is unproblematic for them. The same cannot be said for the interdisciplinary research in international law, with accusations “of producing poorly theorised or methodologically weak work” hounding the socio-legal research.

The question then becomes why is this the concern. The answer to this lies in the comments made once by a colleague about lawyers and nonlegal methods: “lawyers are like The Borg, they find something useful and assimilate it.” They become very good at understanding how the method works, but don’t take the time to understand or articulate why that method is the most appropriate for the research question they are addressed. The range of methods that are available to the interdisciplinary scholar are extensive and can’t be covered here, but the key to understanding what method is most appropriate for the question you are trying to address in your research is understanding the other discipline you are working with and the methods that are employed within that space. No method is inherently correct or incorrect for a particular research question – the key lies in how you justified both the theory and method you are bringing to your question and articulating why that method is being used and not a different one. That said, one should be wary of scholarship that defines itself by the method rather than the research question.

II. Selection Bias

Selection bias is when, deliberately or accidentally, you use a dataset that is incomplete. It renders your argument void, because the data you used was not reliable or meaningful. Data-driven research must include all data, even data that may undercut the primary thesis, because otherwise it is incomplete and therefore is without value. This often goes against many legal researchers' instincts, because legal training still largely focuses on advocacy. In advocacy, focusing on the evidence that support your argument is fully appropriate and necessary. However, in data-driven research, it is critical to show that you data includes and accounts for cases that diverge from the pattern you are trying to demonstrate. This also reflects a wider shift needed when moving from a legal mindset to a data mindset: lawyers think in terms of absolute rules; data-driven research seeks to demonstrate tendencies.

III. Understanding External Data

Particularly in interdisciplinary studies in international law a researcher will use or rely upon an external (usually publicly accessible) data source. Broadly speaking had data sources considered external if the data wasn’t gathered by the researchers themselves. When using external data sources it is important to establish the accuracy and integrity of the data, while also acknowledging (or highlighting) any weaknesses that makes this with the dataset. It is also important to justify why the use of an external dataset in this instance is the most appropriate approach to addressing the question at hand. An excellent example of how to manage these questions can be found in the second part of Chapter 2 of Paige’s study on UN Security Council decision making in relation to threat to the peace.

IV. Personal Constraints (Time, Skills, Resources)

When setting out to do an interdisciplinary, data driven study in international law one of the first things to consider at the planning stage of the project is what personal constraints will exist and how that will impact your ability to produce a complete study. The most significant factor when considering personal constraints is time. In a 2013 seminar on doing interdisciplinary research, renowned sociologist of law Dr Angela Melville noted that the best approach to assessing time constraints in empirical research was to generate a realistic timeline and then triple it. Her justification for this was that no planning ever accounts for all the unexpected hurdles that crop up when doing empirical work. The other main constraint to consider is access: Will you have access to the dataset? Will you have access to sufficient interview participants to have a complete dataset? Will you have access to enough resources to continue data gathering until you have reached data saturation? Will you physically be able to get access to the relevant participants themselves? All of these questions need to be considered in the research design phase, and all of the complications that arise around these issues are why any empirical work will take three times longer than you expect.

V. Do’s and Don’ts of Publishing Interdisciplinary Scholarship

There are a significant number of dos and don’ts when it comes to doing data driven interdisciplinary research in international law. In summary, you should be open about the bias as you bring to the project and how they have impacted your analysis. You do this for the sake of transparency, and to allow the reader to read your analysis in light of your biases. You should not allow your biases to shape what data get included or excluded from your study (see the above section on selection bias). You should also not allow your biases to dictate how you read the data – they may always inform your analysis but they should not drive your analysis; good researchers are open to their hypothesis being proven wrong by the data. You should make clear why the method you are using is the most appropriate one to address the research question you have in front of you. You should not shape your research question to fit it in to a preferred methodology – research methodologies are simply tools in a research as toolbox and you should choose the right one for the project, not choose the project for the tool. Do acknowledge any weaknesses that exist within your dataset, and factor that into your analysis of the dataset. Don’t try and explain away or mitigate those weaknesses, rather you should highlight how they demonstrate and need for more data gathering and studying on an issue.

Overall interdisciplinary research in international law is a rewarding pursuit, but to be done well it requires a strong grounding in international law and the other discipline which you are using for your research.

Further Readings

• Eliav Lieblich, "How to Do Research in International Law? A Basic Guide for Beginners", 62 Harvard Journal of International Law (2021) 42-67, https://harvardilj.org/2021/01/how-to-do-research-in-international-law-a-basic-guide-for-beginners/
• Shai Dothan, "A Guide to Quantitative Legal Research", iCourts Working Paper Series, No. 221 (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3719836

Conclusion

• Summary I
• Summary II

Footnotes

Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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A. Heading

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Başak Etkin & Alex Green

Required knowledge: Link

Learning objectives: Understanding XY.

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A. Positivism as Method and Ideology

B. Critiques of Positivism

Legal positivism, in the sense canvassed here, is the view that legal norms are determined or ‘fixed’ as part of any given legal order ultimately on the basis only of their pedigree in relation to a given sets of social facts. The inverse view, held by ‘non-positivists’, is that international legal norms are necessarily determined not only by social facts but also by facts about political morality. Take, for example, a claim such as ‘the 1969 Vienna Convention on the Law of Treaties expresses true propositions of international law’. For the legal non-positivist, this statement will only be true to the extent that the law-determining function of the Vienna Convention is morally valuable in some way. This reliance upon political morality, perhaps counter-intuitively, is also entailed by the beliefs of normative positivists, like Oppenheim or Weil, who aver that for moral reasons international legal norms must be identified with recourse to social facts alone. To continue with the same example, a normative positivist and a committed non-positivist might both accept that the Vienna Convention helps to determine norms of international law because treaties in general have a coordinating function, which is valuable vis-à-vis the stability and predictability of international relations. For both schools of thought, in other words, treaty texts help to fix the content of international legal norms because there are compelling reasons why those texts should have this effect.

What, then, distinguishes non-positivists from normative positivists? Non-positivists, whilst agreeing that facts about political morality partly determine the content of the law, disagree that moral reasoning should be excluded from the identification of international legal norms at a more concrete level. Normative positivists, as noted above, argue that international law should be identified with recourse to social facts alone. According to their view, excluding moral considerations from legal reasoning is, amongst other things, conducive to international stability, insofar as it avoids the proliferation of inter-state disputes. For the non-positivist, however, the exclusion of moral considerations from legal reasoning is wrongheaded, either because they believe normative positivists to be mistaken about the allegedly destabilising effects of moral reasoning, or because they believe identifying international legal norms to be impossible on the basis of social facts alone. In what follows, we examine a few reasons why one might reject legal positivism wholesale, as it were, and adopt a non-positivist approach instead.

I. Insufficient Consensus

As we have seen, central to the positivism of Hart, Raz, and others, is the notion that legal validity turns on the existence of one or more rules of recognition. This claim can also be put in the following terms. Within any given legal order, the norms of that order are ultimately determined exclusively in relation to the convergent behaviours and attitudes of law applying officials; the social facts that such officials treat as being sources of law become sources for that reason. Within international law, as we have seen, the relevant legal officials include state representatives and international adjudicative bodies, to name but two examples. One possible reason for rejecting positivism of this kind, at least as far as international law is concerned, is the belief that insufficient convergent in official attitude or behaviour exists within that system, such that no rule of recognition can be said to exist there. This, interestingly enough, is close to the view that Hart himself professed about international law, even if it has become unpopular amongst positivist international lawyers. Recent scholarship has renewed attacks against positivism within international law along these lines. Importantly, such criticisms raise issues for not just for analytical positivism but also for normative varieties. This is so because if international law possesses no rules of recognition (or some set of norms fulfilling the same function and determined both ultimately and exclusively by social facts) then legal reasoning in a fully positivist mode is impossible, no matter how advantageous it might be in principle.

2. ‘Rational’ Determination and Social Facts

Another doubt one may have about rules of recognition stands in relation to their law determining function as such. Even if there are sufficiently convergent attitudes and behaviours amongst international legal officials to constitute one or more rules of recognition, it is unclear why these attitudes and behaviours alone should be treated as having a law determining effect. According to a broadly Hartian view of legal validity, the law determining function of official practices follows effectively by definition. However, on the plausible assumption that legal norms must be identified to exist for a good reason, it is not obvious why this definitional move should hold. This concern arises because the attitudes and practices of legal officials themselves are social facts, with no necessary normative implications, and therefore cannot provide such reasons in and of themselves. Importantly, this critique is inapplicable to normative positivism, which holds that facts about political morality can explain why ultimate and exclusive recourse to a particular set of social facts should be observed. Nonetheless, concerns about the ‘rationality’ of positivism remain applicable to its purely analytical variants, notwithstanding this fact.

3. The ‘Positive’ Non-Positivist Case

Finally, one might wish to appeal directly to political morality within legal reasoning for more positive reasons. In the first place, on the assumption that either of the first two critiques presented above are true, then reliance upon more than just social facts alone is inevitable when identifying international law, at least at higher levels of abstraction. This being so, there is no point, or so the argument might go, in pretending otherwise. It is preferable to be transparent about one’s reliance upon political morality, instead of obscuring it behind a positivist veneer. Alternatively, one might believe that direct recourse to moral considerations within legal reasoning would be conducive to the promotion of global justice, if for no other reason than it focuses attention on the most morally salient aspects of a given international dispute. Considerations of this sort have motivated a range of contemporary non-positivist scholarship, both in relation to international law in general, and as regards more discrete regimes, such as the law of statehood, international trade law, or the law of human rights.

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Authors: Shubhangi Agarwalla, Sué González Hauck, Thamil Venthan Ananthavinayagan

Required knowledge: Link

Learning objectives: Understanding XY.

B. Points of Departure and TWAIL Trajectories

I. Introduction to the Concepts of the Third World and the Global South

The term ‘Third World’ originates from the time of the bipolar Cold War opposition between the First World, comprised of the member states of the North Atlantic Treaty Organization (NATO), and the Second World, organized in the Warsaw Pact, in the second half of the 20^th century. The Third World rallied not only around the idea of non-alignment but also around a shared history of being subjected to European colonialism. As a politically institutionalised project, the Third World took shape in several conferences, of which the Afro-Asian meetings in Bandung in 1955 and in Cairo in 1961, the inaugural conference of the Non-Aligned Movement in Belgrade in 1961, and the Tricontinental Conference in Havana in 1966 stand out. Today, the term ‘Third World’ has been partially replaced by the term ‘Global South’. This latter term bears less direct links to the Cold War bloc opposition and points instead at a critique of the kind of neoliberal globalization that gained traction in the 1990s after the collapse of the Soviet Union.

II. Engaging with the Colonial Legacies of International Law

The main aspect that unites TWAIL scholarship despite the heterogeneity of the movement is the shared endeavour of grappling with international law's colonial legacies. Several influential TWAIL authors, including Antony Anghie, Sundhya Pahuja, and, most recently, Ntina Tzouvala have examined the structure of international legal arguments through history to show how colonial and racist thought animates international law. Anghie argues that it is the 'dynamic of difference' which generates the concepts and dichotomies that are fundamental to the formation of international law. With the term 'dynamic of difference', Anghie refers to the conceptual tools positivist international lawyers deployed to, first, postulate a gap between the civilised European and the uncivilised non-European world and, second, to construct and employ techniques to bridge this gap, i.e. to civilise the uncivilised, to engage in the civilising mission. The civilising mission, the idea that non-European peoples are savages, barbaric, backward, violent and that European peoples thus must educate, convert, redeem, develop, pacify - in short, cilivise - them has been used to justify continues intervention by European countries and other countries of the Global North - the West - in Third World countries. Pahuja emphasises that international law constructs its own subjects and objects. It does not merely rely on a number of foundational notions, such as the state, the international, or the law. Nor does it merely apply to objects external to it, like the economy. Rather, through definitions that make categorial cuts between what is inside and outside certain categories, international law produces these categories even though it is deemed to be founded on them. As the production of international law's foundational concepts has occured through the colonial encounter and through the particular contexts of several imperial and post-imperial projects, the shape these concepts gained is determined by these very particular contexts. Simultaneously, however, international law posits the legal categories it produces as universally true. It is the interplay between international law's self-formation in (post)colonial contexts and international law's universalising gestures that produce what Pahuja calls international law's 'critical instability'. 'The instability is ‘critical’ in both senses of the word, for it is simultaneously a threat to the reach and existence of international legality and an essential, generative dimension of it'. Pahuja's work has focused on how the potential offered by this critical instability, a potential of pointing out international law's shortcomings in terms of its own aspirations towards universal justice and thus using international law in emancipatory ways, has been repeatedly contained by a ruling rationality. 'A key dimension of that rationality is the position of development and economic growth vis-à-vis international law. The combination of the promise offered by international law’s critical instability and the subsumption by the ruling rationality of efforts to take up that promise explains international law’s dual quality, or its puzzling tendency to exhibit both imperial and counter-imperial dimensions.' Ntina Tzouvala focuses on the standard of civilisation as a set of argumentative patterns, which oscillate between two modes of distinguishing between 'the West and the rest'. The first is what she calls the 'logic of biology'. It is based on biological racism and the isurmountable barriers it erects against colonised and formerly colonised peoples gaining equal rights and obligations under international law. The second, the 'logic of improvement' in Tzouvala's terminology, replaces definitive exclusion with conditional inclusion, offering peoples of the 'Third World' a prospect for gaining equal rights and obligations. The condition for gaining such equal recognition, as Tzouvala argues, has been capitalist transformation.

III. History of TWAIL as a Movement

TWAIL as a rubric for an academic movement emerged in Harvard in 1996. To acknowledge the intellectual tradition within which scholars who started calling themselves TWAIL scholars in the 1990s were working, Antony Anghie and B.S. Chimni coined the term ‘TWAIL I’ and ‘TWAIL II’. With the term 'TWAIL I', Anghie and Chimni referred to scholars like Georges Abi-Saab, F. Garcia-Amador, R.P. Anand, Mohammed Bedjaoui, and Taslim O. Elias, the first generation of international law scholars from newly independent states, who grappled with the exclusions that a Eurocentric and colonial international law had produced. TWAIL II scholars started building on the legacy of the aforementioned scholars while further developing the analytical tools necessary to engage with international law from a Third World perspective. This meant taking a critical stance towards some of the main tenets of TWAIL I thought. TWAIL II scholars shifted their attention and normative commitment from the post-colonial state to the people living in the Third World, which allowed for analyses that could take into account the violence within post-colonial states as well as conflicts generated by class, race, and gender. Additionally, the shift from 'TWAIL I' to 'TWAIL II' meant a shift in general attitudes regarding the role of colonialism in international law. While TWAIL I scholars had treated colonialism as an aberration, which could be broken with and remedied by using and slightly modifying the techniques of the existing international legal order, TWAIL II scholars turned to the history and theory of international law to show how colonialism has been a central and defining feature of the formation of international law.

C. TWAIL Engagements with Core International Law Doctrines

D. TWAIL Methodologies

I. TWAIL and the Turn to History

Methodologically, one of the main characteristics of TWAIL scholarship is its focus on history. 'History matters', as Luis Eslava reaffirms as the first of five TWAIL coordinates, which characterise the movement. The particular appreciation of history stems from TWAIL's aim of transforming international law. Understanding the past is a necessary prerequisite for transforming the present and the future. TWAIL histories have pointed out the Eurocentric nature of existing histories of international law. They have focused on the co-constitution of international law and imperialism as well as on histories of Third World resistance, of alternative projects and movements.

III. TWAIL and Critical Scholarship on Race and Racism

Critical scholarship on race and racism, which includes but is not limited to Critical Race Theory (CRT), is mainly concerned with the social construction of races and racial hierarchies and with how these hierarchies have been used to justify exclusion, exploitation, and domination.

E. Recurring and Emerging Themes in TWAIL Scholarship

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Verena Kahl/Tamsin Paige

Required knowledge: Link

Learning objectives: Understanding XY.

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A. Overview/Introduction

I. Feminist and Queer Theory as Forms of Deconstruction

Feminist and queer approaches form part of a diverse field of schools of thought, some of which are presented in further detail in this textbook. These theories observe, analyze and criticize public international law from a particular perspective and, coming from this specific theoretical foundation, seek to deconstruct its object of analysis. Deconstruction in this sense can be understood as a never ending process of questioning existing and accepted structures of dominance which are perceived as objective, neutral or natural. As a result, it reveals the existence of other competing forms of interpretation, alternative views, that have been ignored, overshadowed or suppressed, thereby opening the door to new possibilities and structures. The concept of deconstruction therefore rejects the idea of an absolute truth or natural referent, but rather searches for 'the tensions, the contradictions, the heterogeneity.' In its ability to show pluralities and different options, deconstruction creates space for (ongoing) transformation and reconstruction. With this in mind, '[it] is only through this element of endless analysis, criticism and deconstruction that we can prevent existing structures of dominance from reasserting themselves.' In this regard, feminist and queer theory aims at the deconstruction of a perceived neutral or natural international legal order that rests on a dominating masculine and heterosexual standard.

II. The Male and Heterosexual Standard

Although neither one nor 'the one' feminist and queer approach to international law exists, as shown below, all of these different approaches in the realm of feminist and queer theory share a common baseline: International law has been developed and shaped predominantly by men and has been built on the assumption that men and masculinity are the (societal) norm. While this norm and, as a consequence, public international law, has largely been perceived as neutral, it largely neglects all those categories that deviate from this standard. In this sense, it is not only women and femaleness that are excluded as 'the other'. Rather, all deviations as regards to sex, gender or sexuality, which are considered as different from or opposed to the norm, eke out a shadowy existence as their perspectives and interests are constantly ignored and bypassed. This includes, but is not reduced to persons defining/identifying themselves as women, lesbian, homosexual, bisexual, transgender or intersexual, thereby expanding categories of sex, gender and sexuality far beyond a mere binary understanding. In essence, public international law, just like domestic law, suffers from a clear gender bias, some of whose manifestations are described further below. This gender bias of international law, elevating the masculine to the norm, functions like a 'veiled representation and projection of a masculine which takes itself as the unquestioned norm, the ideal representative without any idea of the violence that this representational positioning does to its others.'

III. Commonalities of Feminist and Queer Theory

Since international law builds on a masculine and heterosexual standard that is confronted with a great diversity of deviations that are systematically overlooked, a joint presentation and consideration of feminist and queer approaches to international law is not only a legitimate and useful unification of perspectives in the de- and reconstruction of public international law. On the contrary/instead/rather, this holistic approach virtually imposes itself in view of common structural experiences of discrimination and injustice. Otherwise, the picture drawn by an analysis of public international law from either a feminist or a queer perspective would be left/remain incomplete. Using a holistic approach does also justice to the principle of intersectionality and may, at least to a certain extent, counteract an oversimplification of categories and distinguishing features, such as male/female or hetero-/homosexual, even if avoiding them completely may not always succeed. In this sense, combining feminist and queer theory also means not to remain 'within the closed fields of these oppositions' and thereby perpetuate the inherent hierarchy, but rather move beyond binary structures.

B. Common Terms and Concepts

I. Sex and Gender

Two main concepts which are deeply interrelated and essential to feminist and queer theory manifest themselves in a distinction drawn between 'sex' and 'gender'. The term 'sex', on the one hand, is regularly used to describe biological differences between men and women construed as binary categories related to bodies. 'Gender', on the other hand, is often used as an opposite term in the way that it describes cultural and social imprinting of distinctions made on the basis of sex. In this sense, the Human Rights Commission has contrasted both terms as follows: 'The term "gender" refers to the ways in which roles, attitudes, values and relationships regarding women and men are constructed by all societies all over the world. Therefore, while the sex of a person is determined by nature, the gender of that person is socially constructed.' With this in mind, the notion of 'gender' has been described as a fluid and unstable concept and is often understood as a rejection of the biological determinism embodied in the concept of 'sex', which carries an 'excess cultural baggage'. It is also used to relativize and break down the dichotomy and binary associated with the (biological) sex and thus to open it up to categories that go beyond woman and man, male and female. Gender identity is therefore much more complex due to the 'dynamic relationship between the body and identity which gives rise to multiple possible alignments, which can change over time, or even from moment to moment.'

Despite this intention to show a more inclusive and diverse picture beyond traditional understandings of masculinity and femininity and the presumed neutrality and objectiveness attributed to the term 'gender', it has been and still is frequently used as a synonym for women. Gender-based analyses have therefore to a large extent focussed primarily on women as a seemingly stable (biological) category, thereby neglecting gender discrimination suffered by the many other individuals of very diverse forms of gender identity.As a consequence, feminist approaches have long revolved around women as their coherent subject which presumes a common, collective and universal identity. Feminist scholarship has thus neglected in large parts 'how the category of "women", the subject of feminism, is produced and restrained by the very structures of power through which emancipation is sought'. This one-dimensional picture of identity that suggests a universal experience of discrimination and oppression has further led to ignoring the intersection of gender with other modalities of socially and culturally constructed identities, linked to notions such as 'class', 'race', 'sexuality' or 'ethnicity'. However, there have also been attempts to deconstruct the category of 'women' in order to 'better reflect the racial, cultural, religious and other forms of diversity, troubling the category of women, and concomitantly, the concept of gender from within' and - in a step further - to rethink the underlying categories and concepts. Still, Brenda Cossman concluded that 'the troubling of sex and gender, and crisis of categories [...] has not yet permeated feminist international law scholarship, let alone international law. [...] Indeed, as gender comes to be instantiated at the international level, its meaning has become rather more rigid and fixed.'

Furthermore, the idea that 'sex' is a natural and immutable characteristic has been increasingly challenged, for having constructed, contingent and political dimensions. Jane Flax has therefore warned that the distinction and separation between 'sex' and 'gender' 'rested upon problematic and culture-specific oppositions, for example, the one between "nature" and "culture" or "body" and "mind"', obscuring the possibility that 'our concepts of biology/nature are rooted in social relations.'

In this spirit, attempts have been made within queer and feminist approaches to denaturalize both sex and gender, assuming that categories of sex and gender do not exist prior to normative discourse and regulation, which is why they 'should both be understood as the effects of performative and reiterative gender norms [...] which materialise, naturalise, regulate, and discipline sexed bodies and identifications.' It follows that the wording itself creates identity. Put in the words of Judith Butler, ‘[t]here is no gender identity behind the expressions of gender; that identity is performatively constituted by the very “expressions” that are said to be its result.’

II. Feminist and Queer Theory

1. Feminism and Feminist Theory

Feminists mostly agree that there is no unified or homogenous discourse in feminist theory and that the feminist movement is comprised of diverse views and voices. Although the feminist discourse is shaped by multiple controversies and disagreement, feminist theory is generally built on a common methodological baseline as it seeks to describe, analyze, explain and change gendered power relations in all spheres of life. In this sense, 'feminism is a mode of analysis, a method of approaching life and politics, a way of asking questions and searching for answers, rather than a set of political conclusions about the oppression of women.' Through the study of gender, gaining 'critical distance on existing gender arrangements' becomes possible and creates space for reassessment and alteration. Feminism challenges gendered power relations, particularly those that 'favor men and masculinity over and above women and femininity', in order to achieve human liberty for men, women and beyond. Miriam Schneir therefore described feminism as 'one of the basic movements for human liberty'. However, as has been described above, visible feminism and feminist theory have for a long time ignored the diversity and intersectionality of discrimination experiences suffered by women worldwide and got itself trapped in the binary dichotomy of male and female, men and women, thereby ignoring the plurality of gender identities and corresponding experiences of discrimination. Nevertheless, it seems that nowadays many if not most feminists seek to embrace the diversity of voices in the feminist discourse, which they consider as essential 'to capture the reality of women's experience [and] gender inequality.' As a consequence, Sandra Harding asks feminists to give up 'the goal of telling "one true story"', but instead embrace 'the permanent partiality of feminist inquiry'. Thereby feminists could 'seek a political and epistemological solidarity in our oppositions to the fiction of the naturalized, essentialized, uniquely "human" and to the distortions, perversions, exploitations, and subjugations perpetrated on behalf of this fiction.'

2. Feminist Approaches to International Law

With regard to international law, feminist approaches use feminist theory as a tool for critical analysis in order 'to show how the structures, processes, and methodologies of international law marginalize women by failing to take account of their lives or experiences.' In this sense, feminist approaches to international law seek to lift the veil of an international legal order perceived as neutral and objective and make visible its underlying and omnipresent male standard constructed as the 'norm' and the 'normal' which results in a power imbalance and hierarchy between men and women and materializes in the silence of international law regarding women's experiences and interests. They therefore continue to demonstrate that international law is a 'thoroughly gendered system'. According to Charlesworth and Chinkin, feminist analyses of international law fulfill two main tasks: On the one hand, feminist approaches aim at the deconstruction of the values upon which the international legal system is constructed and thereby challenge their claim to rationality and objectivity. On the other hand, feminist approaches seek to reconstruct international law in a sense that it rebuilds 'the basic concepts of international law in a way that they do not support or reinforce the domination of women by men.'

3. Queerness and Queer Theory

Queerness, as a term, has a complex history that centres around positioning as outsiders those who do not conform to norms and expectations of society. This led to it being a pejorative term to describe people who did not appropriately perform heterosexuality. Consequently, the term queer has been reclaimed by the QUILTBAG+ community (Queer, Unsure, Intersex, Lesbian, Trans*, Bisexual, Asexual/Aromantic/Agender, Gay, plus others outside these categories and heteronormative classification) as both a generalised shorthand for the community at large and an individualised identity for those within the community who do not feel comfortable with the constraints of more specific identity descriptors. In this way, queer acts as a generalised or collective (descriptive) noun, but also an individualised (identity) noun. This becomes more complex linguistically when considering that queer also operates as a verb, in that ‘queering’ is an action that can be taken that is underpinned by a questioning and interrogation of underlying (heteronormative) assumptions that underpinned and normative approach to the thing that is being queered. Technically, queer can also be used as an adjective; however, as the adjective use of queer is irreversibly tied to the use of queer as a pejorative this use of the word has rightly fallen out of common vernacular. While queer theory often has a focus upon queer subjects (then noun form of queer), queer theory itself is predominantly focused at a form or method level with the verb approach to queer.

4. Queer Approaches to International Law

In general, queer approaches to international law seek to include experiences and identities into the international legal discourse and the normative framework that are distinct from the heterosexual standard, particularly illustrated in the granting of equal rights and prohibition of discrimination on the basis of sexuality and sexual identity. In addition, Dianne Otto understands 'queering of international law' more broadly than traditional approaches of norm inclusion. In this sense, queer theory fundamentally challenges and criticizes the regime of what is considered as 'normal' with regard to human sexuality, thereby moving beyond the dominant dualism of heterosexuality and homosex. In the words of Otto, queer theory to international law is '"taking a break" from the politics of hetero-normative injury, and imagines human sexuality as much more diverse and shifting.' While feminist theory has put a spotlight on the notion of 'gender' in international law and thereby uncovered and exposed norms and standards underlying the international legal order which were formerly perceived as neutral, but which build upon inherent hierarchies that create power imbalances and result in (structural) discrimination, quite similarly queer theory makes 'visible the [hetero] sexual ordering that is taken for granted as an underpinning of the "normal" system of international law' and discloses heterosexuality as the 'basic model for all dominant systems of societal relations.'

5. Frictions and Intersections of Feminist and Queer Theory to International Law

As outlined above, there is much to be said for a joint presentation of feminist and queer approaches to international law. Especially in light of the open, fluid concept of gender and the need to break down and overcome the heteronormative binary of both sex and gender, a critical analysis of international law from a one-sided feminist or queer perspective would remain patchy and incomplete. However, this is less about adding up different perspectives, but about choosing an integrative approach that attempts to map the complexity of situations and experiences of discrimination and to develop adequate methods that go beyond describing a specific problem/issue, but respond to it by exploring possible solutions. Still, constructive dialogues between feminist and queer theory have rather been the exception than the rule, which is - according to Gina Heathcote - also due to the fact that 'mainstream feminist approaches to international law are yet to incorporate queer and trans scholarship into feminist accounts' and have mostly ignored the dialogue commenced by queer approaches to international law. Instead, feminist approaches have - intentionally or unintentionally, for pragmatic or other reasons - largely built on the heteronormativity and cisgenderism inherent in the structures which they seek to criticize, resulting in the 'invisibility of individuals who do not neatly fit into the normalized gender binary' and reproducing the 'fear of undermining heteronormative social structures.' In contrast, moving beyond dualism and asymmetry would allow 'to tell a story of marginality that has not yet been told’, drawing an inclusive picture of discriminatory experiences without 'losing the precarious spaces that have been carved out for addressing women’s human rights abuses.'

Include info-box with regard to cisgender:

The notion of 'cisgender' refers to persons who feel that their assigned sex at birth conforms with the gender they feel themselves to be. Cisgender is often used as an opposite to the term 'transgender' and is regularly tied to the binary system of biologically anchored categories of women/men and female/male.

III. Structural Discrimination

During the last two decades, international human rights institutions have increasingly made reference to the phenomenon/concept of structural discrimination. Structural discrimination is distinct from individual discrimination which refers to the behavior of an individual belonging to a specific group that is intended to have differential and/or harmful effects on the members of another group. Typically, the differential and/or harmful behavior stems from individuals belonging to the dominant group that represents (or perceives itself as) the majority and is directed against individuals that due to specific characteristics are considered as minority or distinct which has also been described above as 'the other'.

In contrast to individual discrimination, structural discrimination refers to discrimination rooted in grown and therefore pre-existing structures and inequalities of society. It occurs when the rules, norms and policies of a society's major(ity) institutions impose and produce disproportionately disadvantageous and unjust outcomes for the members of certain salient social groups. Discrimination is thereby introduced/integrated into often unconscious societal routines and patterns of attitudes and behavior that create and maintain discriminatory practice . The applied rules, norms and policies as well as societal routines and patterns are largely perceived as neutral, because their negative outcome - the differential and/or harmful effect on certain groups - is usually not intended. As Pincus highlights the 'key element in structural discrimination is not the intent but the effect of keeping minority groups in a subordinate position.' In this sense, members of a certain group that due to the application of these rules and policies are denied equal opportunities and suffer from unjust disadvantages are put in a vulnerable position exposing them to exploitation and domination. In the context of gender inequality, MacKinnon has described structural discrimination as 'the systematic relegation of an entire group of people to a condition of inferiority.'

Although structural and institutional discrimination may sometimes be used synonymously, Pincus described their differences as follows: Both forms of discrimination share the effect of certain groups being kept subordinate, "but only institutional discrimination is intended to keep minority groups subordinate." While structural discrimination as a phenomenon can therefore generally be described as indirect and unintended, it may still be built upon or accompanied by forms of direct and intentional discrimination. It is also important to point out that women are much affected by structural and institutional discrimination as other groups even though they do not fit into the category of minority.

IV. Intersectionality

It was Kimberlé Crenshaw who first described and introduced the concept of intersectionality into feminist theory. Her work 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics' can be read as a critique of both feminist and anti-racist movements for their one-sided focus on the most privileged members of the group. According to Crenshaw, the 'single-axis analysis' results in anti-racist strategies that tend to focus on gender privileged persons - men - and a women's movement which puts a spotlight on class-privileged women associated with a certain race, namely white, middle- and upper-class women. This blindness towards other groups that suffer from structural discrimination, particularly at the intersection of different categories upon which subordination and discrimination is based, leads to the marginalization of 'those who are multiply burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination.'

As a consequence, an intersectional approach as applied by Crenshaw has more generally been understood as the 'idea that when it comes to thinking about how inequalities persist, categories like gender, race, and class are best understood as overlapping and mutually constitutive rather than isolated and distinct.' Building upon this, intersectionality has been commonly defined as 'the complex, cumulative way in which the effects of multiple forms of discrimination [...] combine, overlap, or intersect especially in the experiences of marginalized individuals or groups.' Consequently, intersectional approaches of feminist and queer theory seek to include perspectives and experiences of individuals and groups where several forms of discrimination based on different categories, such as gender, sexual orientation, class, age or disability, just to name a few, overlap.

C. Problems that Feminist and Queer Theory Seeks to Address

Broadly speaking, feminism and queer theory seek to address the same problem: equality within society. This goal is one that is shared with most marginalised-peoples-focused theories within law, social sciences, and the humanities. The key differences here (and elsewhere) are which marginalised group is the focus in its quest for equality, and how this quest for equality is positioned strategically and tactically.

There is a valid argument to suggest that the drafting and entry into force of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979 and 1981 respectively is the starting point of feminist approaches to international law; however, academic scholarship from the feminist tradition didn’t gain traction until a decade later. The consideration of international law as an area of concern for feminism began in earnest in 1991 with the foundational article ‘Feminist Approaches to International Law’ by Charlesworth, Chinkin, and Wright. While this began at the same time as what is seen as third wave feminism (most distinctively characterised by the work of Butler and incorporating intersectionality following Kimberlé Crenshaw’s work), the approach taken was shaped by the education in second wave feminism of the academics championing this important moment in International Law. This approach to seeking equality being grounded in the framework of second wave feminism can be seen in how CEDAW has been constructed and in how Charlesworth et al. construct the goal of feminism as being “to capture the reality of women’s experience or gender inequality.”

This tendency of the feminist tradition in international law to follow second wave feminism, which is much more grounded in biological determinism than third wave feminism, is most evident in the way we see the UN’s gender mainstreaming programs (which seek to normalise considerations of the perspectives and impacts of women in UN activities). It is also evident in fantastic programs such as the Gender Legislative Index, which seeks to assess how well states domestic laws are complying with CEDAW obligations. In this construction the object of feminist interventions and international law is grounded in cisgender women being the subject of arguments for equality.

The outcome of this focus of women is the subject matter of feminist interventions and international law lends itself to two separate approaches. The first, and arguably more common approach (and definitely more theoretically sound approach), is one that embraces Crenshaw’s call for intersectionality in its analysis. This is a feminism that acknowledges, and embraces, the fact that women’s lived experiences of the impacts of law is not universal and is also shaped by other defining characteristics of marginalisation (such as inter-alia race, class, sexuality, and disability). While this feminism is still predominantly focused upon equality for women, it acknowledges that women’s equality is contingent upon equality for all marginalised groups and the need for feminism to engage in dialogue with these groups. The other approach, often dubbed ‘White Woman Feminism’, embraces the call spearheaded by Catherine MacKinnon that women need to be considered a single unified and universal political category that disregards questions of race, class, et cetera when advocating for equality. Proponents of this approach believe that it creates a stronger argument for women’s equality, but ignore that the focus of the approach is often the interests of white, straight, western women. This second approach has also been played by notion of zero-sum games around the question of equality and has pushed back against a broad and inclusive feminism that seeks to advocate for equality for all out of fear that it will come at the expense of equality gains made for women.

Some of the notable achievements of feminist interventions into international law were how advocacy was able to get International Criminal Law and international humanitarian law to treat armed conflict sexual violence as a crime against the personhood of the victim, rather than as a crime against military discipline (as it had historically been treated). Building upon this success in the 90s we have seen the development of the UN Security Council’s Women, Peace, and Security agenda and the growth in the work of UN Women as a sub agency of the UN to specifically consider the impact of international law on the lives of women. Some of the impacts around how women have been characterised, and often essentialised, through the work of engaging in direct consideration of the impact of international law on women has been strongly criticised; however, even those criticising this work acknowledge that it’s an improvement for women than when they were being utterly ignored.

Queer theory grew out of third wave feminism, in particular the work of Butler and Sedgwick, with a much less cohesive equality agenda than feminism. When looking at questions of equality queer theory is inherently broad (and is mostly inclusive but not without its problems) but has a tendency to focus upon QUILTBAG+ subjects. There is also a strong tendency to explore advocating for equality through an intersectional lens by examining the normative assumptions that are being brought to law and situations that generate inequality. Queer theory, at its core, is an embrace of curiosity and questioning – generally from a framework of understanding that the law and normative assumptions that are brought to law and social practice are culturally dependent social constructions rather than natural and inevitable.

The easiest space to see this distinction between feminist approaches to international law and queer theory approaches to international law is in examination of the project of gender mainstreaming within UN projects. Feminist approaches to international law, while often critical of the details taken through gender mainstreaming, have treated this introduction of idea and process into every UN body (and numerous state foreign affairs and defence departments) as a net good. Queer theory approaches to international law, while acknowledging the improvements that adding gender mainstreaming has produced, have heavily critiqued how the process of gender mainstreaming has led to the use of gender being a euphemism for women, how it has normalised and reinforced the (white) cis/het masculine subject as the un-gendered normal to which all other expressions of humanity must be compared, and how the process has reproduced bio essentialist views of sex and gender along regressive heteronormative lines within international legal discourse.

There is a tension created within feminist and queer theory approaches to international law where the perfect can be the enemy of the good. This tension is often referred to as the ‘double-bind’. This idea of the ‘double-bind’ broadly posits that advocates for change and equality suffer pressures from those outside governmental institution to not compromise in questions of equality, while also suffering pressures from within the institution that require accepting an improvement that is less than ideal in the alternative to no improvement. It is because of these competing pressures that feminism and queer theory requires advocates inside governmental institutions to push for change and accept compromise, and advocates outside of governmental institutions to hold those inside the institutions to account and drive them to continue advocating for better equality.

Overall feminism and queer theory seek the same thing: equality. This is achieved better by marginalised groups working together for the betterment of all, and that is something that is known and acknowledged by the majority of feminist and queer theory advocates in international law.

D. Key People in Feminist and Queer Theory in International Law

These are some of the important figures in feminist and queer theory in international law, although this list does by no means claim to be exhaustive.

·       Hilary Charlesworth

·       Christine Chinkin

·       Shelley Wright

·       Ratna Kapur

·       Rahul Rao

·       Aeyal Gross

·       Dianne Otto

·       Gina Heathcote

·       Nan Seuffert

·       Doris Buss

·       Ralph Wilde

·       Vanja Hamzić

·       Anne Orford

·       Nienke Grossman

·       Josephine Jarpa Dawuni

·       Senthorun Raj

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Kanad Bagchi

A. Introduction

Marxism is a broad church. Its traditions are as old as they are contested. “…Spilts, disagreements, and denunciations…” within it are routinely common. No wonder that many of its tenets have been hopelessly misinterpreted by both Marxists as well as non-Marxists scholars, associating Marxist thought with abject reductionism, crude economic determinism and a certain complicity for authoritarian and dictatorial rule. Ironically enough, Marx himself had vehemently decried being called a ‘Marxist’. To write about a Marxist legal approach is equally difficult, given that Marx and Engels did not have much to say about the law, let alone international law.  

Yet, Marxism is not simply about the words and writings of Marx or Engels alone. Generations of Marxist scholars have drawn from Marx’s larger insights into society and history to explain a number of propositions about law and more recently on international law. Resisting alongside a number of other critical movements, including TWAIL, Feminist and Queer theory, critical legal studies and post-colonial approaches, Marxists have challenged international law’s fundamental claims about promoting peace, prosperity, equality or progress. Even while maintaining this critique, Marxist legal theory has pointed to ways in which law can and should be instrumentalized towards progressive ends mindful of both the reifying structures of the system and its limits for emancipation. Having said that, Marxist legal theory still has much ground to cover, several blinkers to shed and the continuing need to open its discursive space to other critical voices. In what follows, I reflect upon five distinct perspectives that Marxist scholars have brought to the disciplinary understandings of the history and present of international law. Additionally, I also highlight some of the blindspots within Marxist legal theory and how recent scholarship has made important strides to fill those voids. My account is necessarily going to be partial and incomplete. Yet, I hope it is readable, accessible, but most crucially, provides a starting point for further debate and revision.

B. Marxism as 'Perspective' and 'Critique'

The use of ‘perspective’ rather than ‘method’ is a conscious choice. Marxist theory rarely conforms to the idea of a singular method of approaching law. For the most part, Marx and the larger Marxist tradition is a theory about the totality of social forms and relationships among individuals, rather than a specific set of propositions on the law. To invoke a Marxist lens is to view the world and society as an endless set of inter-relationships, where one phenomenon is always connected to the other. This means that ideas, institutions and human agency needs to be understood as part of an “integrated whole” that is both dynamic and also beholden to history and past structures. As Marx's had insightfully claimed “[m]en make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.” How we think about the law then, will depend on how we think about the determining elements of social relationships more broadly. This is where one’s intellectual framework, i.e, theory about the world, collapses into the narrow question of method. Moreover, ‘Marxism’ continues to evolve, even as it registers critique, new ways of thinking and a continuing push against its own traditions. Confining Marxist theory to a pre-determined set of propositions or institutional boundaries is not only misguided but also deeply depoliticizing. ‘Perspectives’ in this sense keeps that space open to be constantly revisited and challenged.

Broadly stated, a Marxist critique is a structural critique, not aimed at individual instance of exploitation or subjugation alone, but a reflection on the material structures of society at a systemic level, which make such exploitation part of the ordinary and mundane. It is also an ‘internal’ critique of the system, that exposes the inner contradictions of its operating logic. Law then is to viewed as a social practice with its own internal formal logic containing a set of argumentative structures that give stability to dominant interests and power. It probes us to think about law and international law not as a fragmented, insular and detached body of rules, but as part of a larger social and economic infrastructure, within which it is embedded and takes its form. Finally, Marxism is not simply a set of theoretical escapades, but a call for radical political action to change existing structures of political economy. It is inherently an emancipatory ‘praxis’ the aim of which is to “create space for interpretive rules and strategies that contribute to the welfare of the subaltern classes”. Marxism therefore, does not draw an overtly strict boundary between ‘theory’ and ‘practice’, acknowledging that one is necessarily dependent on the other.

C. ‘Five’ Marxist Perspectives on International Law

Despite having a rather long and influential pedigree, Marxist approaches to law and international law in particular, largely remained in the margins of the discipline, even within critical circles. Yet, in the last decades, Marxist scholarship in international law has witnessed somewhat of a ‘revival’. This is not least due to the fact that many of our contemporary crisis, whether that be the ‘War on Terror’, rising inequality, financial crisis, climate change, racial injustice, violence against women and indigenous communities and the rise of authoritarian populism, has brought to the fore, capitalism’s worse consequences. Alongside that many of the contemporary social movements whether that be the farmer’s protests in India, the black lives matter movement or the Palestinian struggle against imperialist violence, have been mobilized using Marxist language, even if not explicitly. Increasingly, the visible inter-connectedness of ‘local’ events with the global structures of political economy have called into question the role of international law in the (re)production of worldwide dispossession and alienation. Marxist concepts such as ‘class’ ‘ideology’ ‘economic base’ ‘commodification’ carry tremendous explanatory potential in laying bare the systemic forces at work which naturalizes the historical legacies of this unequal and violent order of things.

1. International law as a Material Phenomenon 

Marxist theory often begins with the fundamental claim that all social relations need to be understood in its ‘historical-material’ context. This means that law, like any other social form of regulation cannot be studied in isolation, but as having its roots in “the material conditions of life” which then are the “real foundation, on which arises a legal and political superstructure.” Legal relations correspond to and is a reflection of the larger economic processes within society. It is important to remember however, that the relationship between law and the economic structure is neither static nor unidirectional. To the contrary, the relationship of the ‘base/superstructure’ is highly continent, co-constitutive and even contradictory – a point that is routinely forgotten. The task of Marxist legal scholarship then, is to ask how this relationship plays out in concrete situations.

Unlike liberal accounts of the discipline, a ‘historical-material’ perspective locates the rise of international law to the consolidation of global capitalism. In this, the story of capital, although begins in Europe, travels to the rest of the world through colonial expansion and imperial violence. Primitive accumulation - the resolutely violent and coercive enterprise of “divorcing the producer from the means of production” becomes the chief means of encounter between capitalist Europe and the non-capitalist world. For Marx, colonial expansion and the “extirpation, enslavement and entombment” of the native population was not only indispensable for capitalist accumulation, but was a natural consequence of it. International law including its rules concerning trade and commerce, the doctrine of sovereignty and the legal standard of ‘civilization’ become central to this project of worldwide domination and subjugation.

Thus, from a Marxist perspective, imperialism and colonial expansion is a material phenomenon at the heart of which lies the need for capital to constantly expand “over the whole surface of the globe”. This not only requires forcibly robbing native populations of their subsistence, but also wholesale transformation of non-capitalist societies into the image of capitalist modernity. As Rosa Luxemburg had argued, “Capitalism must always and everywhere fight a battle of annihilation against every non-capitalist form that it encounters.” Imperialism in a Marxist sense then, is “the political expression of the accumulation of capital" which works to efface all traditional forms of economic and cultural organization and turn them into social spaces that would be safe and productive for capital. Similarly, the distinction between ‘civilized’ and ‘uncivilized’ and corresponding denial of ‘sovereignty’ to the latter from the realm of 19^th century European international law was not only about racial supremacy or domination, but was centrally rooted in the logic of capitalism. Equal sovereignty for the colonies could only come through Western capital, the creation of a centralized bureaucracy and through ‘modern’ forms of political organization. Realization of ‘Statehood’ under international law became synonymous with violent capitalist transformation.

Viewing international law through a materialist lens points to the several ways in which the civilizing mandate continuous to the present day, even when the language of racial difference has witnessed a relative decline. It allows us to witness modern international law as a continuation of past practices of “exclusion and conditional inclusion” of the non-Western world. The post-WWII international legal order which was purportedly based on international rule of law and self-determination did not fundamentally alter the imperial nature of international law, but marked the beginning of “imperialism without colonies”. Imperialism gave way to "the grip of neo-colonialism", tying the third world to the economic dependence of former colonial powers and the institutions which they controlled. The disciplining effects of international law and international institutions manifest itself in the large scale remodeling of the Global South through instruments of structural adjustment and conditionality, market liberalization, promotion of rule of law and protection of foreign investment.  The IMF and the World Bank, among others, promote monetary stability, free capital mobility, disciplined finance and a shrinking of the public sector, under the pretext of seemingly innate and neutral concept of ‘good governance’. David Harvey calls this “accumulation by dispossession” to refer to the accelerated ways which capital inhabits every non-capitalist space, leaving in its wake mass poverty, social stratification, forced migration and land dispossession. Accumulation by dispossession is primitive accumulation in the neo-liberal age aided by the privatization and commodification of natural resources. Modern international investment law, especially BITs entrench the power of foreign capital, while the WTO prescribes for harmonized rules, subjects state autonomy to international adjudication and legalizes the international protection of property rights.

The logic of Marx’s ‘primitive accumulation’ as a gateway to both imperial expansion and capitalist transformation is also writ large in the continuing forms of settler-colonial practices across the world where dispossession and expropriation of indigenous land and territory is legally and constitutionally sanctioned. It allows us to conceptualize the relationship between international law, capitalism and imperialism as a permanent process and not one that ought to be confined simply to the ‘pre-history’ of the discipline. International law as a material phenomenon contests many of the ‘idealistic’ portrayals of the discipline which traces its contours to mythical accounts of benign trade between private individuals, ideas about denouncing ‘war’, ‘human rights’ or ‘peace’. Instead, Marxist accounts of the field have spent considerable efforts in grounding these ‘ideas’ about international law within a historically specific and materially influenced conception of evolution, where it is indistinguishable from violence and expropriation. Here, as Antony Anghie had argued, that international law is imperialism all the way down and much like the birth of capital in Marx’s analysis, international law also comes into the world dripped in “blood and dirt”.

2. International Law as a Class Project

‘Class’ is the organizing principle of society in the Marxist tradition. Marx’s had famously remarked that “The history of all hitherto existing society is the history of class struggles,” between those who own the means of production and those whose only means of subsistence is their labour power. What he meant was that all aspects of social relationships, including those that make up the economic base, are never a constant, but continuously evolve through the struggle between different groups within society. These struggles are often expressed through the law: “(e)very struggling class must therefore formulate its demands as legalistic demands…”. The law becomes crucial here as the means through which class conflict is not only mediated, but more fundamentally, it is in the process of engaging with the law that class consciousness takes its concrete form. So even while law and legal structures reflect, reify and consolidate the interests of the dominant classes, it also simultaneously shapes the form and content of the struggle itself. The outcomes are therefore never pre-determined. 

‘Classes’ however, are not simply confined to the domestic borders of a given political community. With the consolidation of the neo-colonial project in the 1970s and the accelerating trend towards hyper-globalization, class formations too acquired a different dimension. The monolith identity of the ‘state’ as an actor in international law was superseded by rise and prominence of international institutions and loose coalition of networks. Almost all aspects of state sovereignty were transferred, even as domestic policy space became ever more constrained. More fundamentally, the state found itself enmeshed within the capitalist global economy, aided by the rise of a new social formation – an emerging transnational class fraction – which pushed against national borders and territorial delimitations. Capital accumulation now relied on a “globalized regime of exploitation and waged labour".

Marxist scholars, especially Rasulov and Chimni, argued for a class approach that visibilizes the role and significance of different social groups and classes which materially influence and shape the formation of international law. They pointed to the emergence and consolidation of a transnational capitalist class (TCC) - a dispersed, yet influential fraction of capitalist classes from advanced capitalist countries and the Third World. Even while situated in different geographic spaces, the TCC was global and had as its primary objective the facilitation of capital accumulation. TCC works closely with international institutions to advance their interests and to create a “functional unified global economic space” where restrictions to capital movement could be flattened. On the flipside, an emerging transnational oppressed class (TOC) comprised of social groups who are disenfranchised from the means of production came to be gradually consolidated. Newer forms of exploitation, corporate abuse, in-formalization and displacement greased the wheels of capital. Much like their counterpart, the TOC operate transnationally, building coalitions with different oppressed groups and use both legal and political means to push against the TCC.

In this constellation, international law becomes a site of class struggle between the TCC and TOC and thus promotes both class consciousness and provides its constitutive structure. This is most visible in the struggle for environment, bio-diversity, development related displacement and the like, where interests of capital compete with rights of labour, indigenous communities, agricultural workers. These antagonisms play out through overtly capitalist institutions such as the WTO, World Bank and the IMF, but also through institutions such as the International Labour Organization, which one might otherwise think works to correct the imbalance of power between capital and labour. What we have then is an “emerging bourgeois imperial international law” which speaks in the language and uses the rhetoric of universal human rights and ‘rule of law’, even while entrenching material and ideational primacy of capitalist classes.

A class approach to international law helps navigate through the black box of the state and international institutions by identifying the dominant groups which benefit out of the system of international law. It also helps foreground a more granular story of resistance by TOC to capitalist accumulation and directs our focus to new actors in the global arena. From social movements to civil society organizations espousing the cause of TOC, international law is made and re-made in a number of different terrains.

3. International Law, Ideology and the Critique of Universality

A sensitivity towards class structures demystifies liberal claims concerning the ‘universality’ of international law in the sense that many of its proclaimed values such as a human rights are susceptible to selective interests and open to co-option by dominant groups and classes. Law then becomes a means to sustain and stabilize particular interests as universal ones. In the Marxist tradition, this is law acting as an “ideological form” which domesticates resistance and class conflict, by depoliticizing legal relationships and rationalizing conceptual categories. Ideology in the words of Susan Marks, plays a “key role in legitimating exploitation” precisely by representing capitalist social relations as natural and permanent. Relationships of domination and exploitation are delineated as pertaining to the individual sphere rather than as systemic outcomes. In other words, a focus on ideology exposes the abstracting character of the law, that flattens differences of power, even while projecting exchange as transpiring between ‘free and equal’ participants.

It is not difficult to see how ideology critique provides a useful lens to the work of international law, especially in the context of deeply political conflicts. From humanitarian intervention to economic conditionalities as well as the ‘war on terror’, capitalist states and international institutions have routinely invoked international law to justify a particular idea of ‘liberation’ and ‘freedom’. Sundhya Pahuja for instance, has shown that notions of ‘development’ when prescribed in universalistic terms carries with it the prescription for particular kinds of economic and political arrangements which mirrors Western bureaucratic-state apparatus essential for capital accumulation. International law by focusing on domestic roots of ‘poverty’ and ‘conflict’ in the ‘third world’, detracts attention from the systemic patterns of capitalist exploitation and violence at the heart of ‘core-periphery’ relationships. Similarly, the growing infrastructure of international adjudication and the increase in specialized forums of dispute resolution add another layer of depoliticization to social conflicts concerning, land, environment and property. Even the concept of ‘democracy’ promoted by international law sidesteps crucial questions of entrenched social hierarchy and inter-group domination, while privileging a narrow set of indicators and benchmarks to assess participation.

To point to the ideological character of international law is to make apparent what is made invisible and lay claim to the ‘false necessity’ of existing structures. It probes us to think about the contingency of social arrangements and the fact that they need not be the way they are. Yet if exiting social relations seem inevitable or natural, it is but the result of repeated “ideas and rhetorical processes” which legitimize and order such structures. But one should also be mindful of the fact that even though historical relations are contingent, they are not always open to change. Quoting Susan Marks once again, “just as things do not have to be as they are, so too history is not simply a matter of chance and will”, meaning that human agency while paramount for resistance and change, always operate within the “logics of a system". In other words, as much as one ought to be skeptical of historical necessity, meaningful transformation can only transpire through a clear-headed understanding of the ‘false contingency’ and limits of individual action.

4. International Law as Commodity Form

For Marx, capital makes ‘commodities’ out of everything, but most crucially capital expands by commodifying labour power. The process entails both abstracting the individual from the product of its own labour for surplus value, but also alienating labour from the very means of production. With the spread of capitalism, commodification extends to every aspect of life mediated of course though legal relationships. Capitalist relations then are marked by an endless collection of commodities connected through an endless set of legal relations. Capital and law exhibit a structural relationship in the Marxist tradition.

Commodification and the abstracting/individualizing character of the law was central to the work of soviet jurist Evgeny Pashukanis, one of the most influential Marxist theorists of law. Drawing from Marx’s insight that ‘commodities’ are but the elementary form of wealth, Pashukanis argued that in a capitalist society, relations between individuals based on property rights are homologous to abstract commodities which are traded. Just like for commodities to be exchanged, each party much recognize the other as an equal owner of property in an abstract sense, so too does the law treat those parties as equal bearer of rights. In other words, the “legal subject is thus the abstract commodity owner elevated into the heavens" and that the legal form mirrors this commodity form. One of the fundamental insights of the commodity form theory is that law treats individuals as abstract, neutral entities, detached from the material conditions in which they exit. This makes it seem that exchange is between two equals, even while the law invisibilizes and “permits real inequality” among individuals. Much in the same way, Pashukanis illustrated that sovereign entities in their relationship to one another precisely operate as owners of property (read territory) with each possessing equal rights and obligations. This formal equality in status eludes however, the reality “that they are unequal in their significance and their power”. It is in this context that Pashukanis characterized international law as “the legal form of the struggle of the capitalist states among themselves for domination over the rest of the world”.

The crucial question that arises is how are disputes then resolved between two formally equal sovereigns? What is the nature of the legal form that makes certain claims trump over others? This is where China Miéville in his highly provocative book, Between Equal Rights extended Pashukani’s commodity theory to argue that the legal form inherent in international law is that of coercion. Exchange implies ownership and ownership is primarily about the right, mostly exercised through the law, to exclude others. Since international law does not have a centralized system of enforcement, sovereign entities themselves resolve disputes to the interpretation of rules. In a deeply unequal world, what this means is that powerful states are able shape the order and content of legal norms through economic and military force. Because “coercion-is at the heart of the commodity form" and international law mediates commodity exchange, violence is central to it – ‘Between Equal Rights, force decides’.

The commodity form theory as explained by Miéville illustrates precisely how international law not only bore a structural relationship to capitalist accumulation through the commodification of social relationships, but also sustained imperial relations of domination. The very legal form of international law based on “juridical equality” makes violence and coercion in the hands of the ruling classes the chief means of law making and resolution of legal disputes. To suggest then that international law furthers a rules based order and is counterpoised to power and brute force is misleading. Instead, as Miéville poignantly put it, “The chaotic and bloody world around us is the rule of law".

The Commodity Form theory of Pashukanis has found tremendous purchase in Marxist international legal scholarship, even beyond Miéville’s path-breaking reconstruction. The biggest reason for this is that it provides a singularly persuasive historical account of why and how ‘law’ developed the way it did and what makes legal relations the perfect infrastructure for capitalism’s expansion. Claire Cutler has applied the commodity form theory to illustrate the nature of the WTO and GATS in the commodification of public commons, while Grietje Baars reflects on the nature of law as a ‘congealing’ devise for capitalist relations. Her works also centers the role of ‘corporation’ as a tool for imperialist expansion.

5. International Law as Emancipation

And yet, China Miéville’s conclusion that there can be no international law without imperialism and that only through “eradicate[ing] the forms of law” altogether can one even think of emancipation left an enduring mark on Marxist international legal scholarship. Hegemonic quarters within the discipline started to associate the general project of Marxism in international law with legal nihilism, ignoring how Marxist legal scholars themselves have mounted the loudest critique to Miéville. This was accompanied with a certain strand of Marxist scholarship which saw a fundamental incompatibility between Marxism and the support for human rights. Law and international law in this constellation was essentially part of the problem and not the solution to human freedom.

Crucially, these interventions ignored the centrality of capitalism as an inherently conflictual and contradictory system. For Marx, legal struggles and the pursuit of human rights although conditioned by capitalist relations did not mean that they ought to be repudiated. Indeed, Marx expended considerable attention to the law as a means of working class struggle in his elaborate description on the length of the working day, which was won on a legal terrain. Law was important in providing the oppressed classes with the means to push back against capitalist expansion. Similarly, in his work ‘On the Jewish Question’, which is often cited to bring home the point that Marx was disillusioned with the potential of equal rights, Marx had only advanced a limited critique of formal legal quality. For him, political emancipation through law and legal rights was deeply ‘individualizing’ and ‘alienating’ and thus cannot be an end in itself, but only a means towards engendering larger social changes beyond what the law could provide.

Law and the legal form therefore in the Marxist tradition exhibits a dual character which even while constraining the possibility of deep structural transformation provides an important, albeit limited, form of social emancipation through concrete legal struggles. These legal struggles then, must go hand in hand with more demanding political interventions. It is not a choice between ‘Reform’ or ‘Revolution’ but about how these two paths can have always co-existed. Understanding the role of law in the reproduction of capitalist relations and also as a means to resist some of its worst excesses alludes to its ‘relative autonomy’. Both Chimni and Susan Marks thus hold on to the possibility of international law acting as a ‘shield’ against powerful states. Chimni argues for a ‘radicalism with rules’ where international law should be viewed as a site of contestation rather a mere reflection or consolidation of the interests of dominant classes. Bill Bowring goes one step further in situating human rights and international law’s relationship to past revolutions as evidence of the emancipatory role that law can play.

Rob Knox provides a useful lens to navigate through this duality of rejection and embrace of international law. Given that the use of legal means comes with the danger of legitimizing the existing order of social relations, law should only be used for short-term tactical purposes, as a “mere tool to be discarded when not useful." Knox terms this engagement with the law as “principled opportunism” to put forth the point that international law should be pursued for progressive purposes not because it is ‘law’ but because it aids a larger political commitment to fundamentally transform existing society. This would eventually provide the path for what Marina Veličković calls as the “planned obsolescence of international law” i.e, the law’s gradual disappearance altogether. But before that happens, the task of radical critique and practise through international law must continue, even when we realize that any utopian hopes of wholesale transformation is ultimately constrained by the legal form.

D. Blindspots, Exclusions and Absences in Marxist Legal Scholarship

Despite the growing cohort of scholars who are writing within the Marxist tradition in international law and sharpening its conceptual tools, the general project of Marxism has been unable to fully shed its blinkers and unwilling sometimes to reorient its own constitutive categories in the light of other modes of struggles that cut across various axis of social divisions. The project of building solidarity across different resistance movements have not always been forthcoming.

This is perhaps most visible in the way Marxist legal scholars have privileged the category of ‘class’ as the most important marker of social division, ignoring how race, gender, sexuality and caste play an equally important role in the chain of production, distribution and thus also exploitation. Marxism has maintained a distance with other critical tradition such as TWAIL, CLS, critical race theory and also feminist approaches to international law in its singular focus that material conditions are unrelated to how cultural or gender stratifications co-constitute the capitalist mode of production. Despite its emphasis on the totality of social relations, Marxist scholars have themselves advanced an understanding of individuals abstracted from deep structural and social markers of community. As Knox points out, within the Marxist discourse, race and racism “tend to be understood as counterposed to processes of capitalist accumulation". No wonder that these exclusions are reflected in some of the ‘mainstream’ iterations of Marxist legal scholarship (including this one) which are produced by men, with a relative absence of women, trans or even black writings on the subject.

Equally, this dissonance is sustained by critical scholars in other traditions who mechanically associate the writings of Marx and the Marxist project with that of structural determinism and Eurocentrism. In some influential quarters of TWAIL for instance, Marx is portrayed to be “irrelevant” to Third World decolonial struggles. These musings of course, overlook not just the fact that Marx himself was alive to the conditions of colonialism and expropriation of native peoples as central to Western capitalist expansion, but also generations of Third World Marxist scholars and anti-colonial movements which applied, modified and even ‘stretched’ Marxist theory to local conditions and experiences of domination and imperialist expansion. For the latter, reading Marx has always been about how under conditions of capitalist accumulation, racialization, gender and caste based stratifications are crucial determinants of what constitutes the material conditions of life.

In contemporary times however, many Marxists and equal number of TWAILers, feminist theorists and critical race scholars have moved beyond traditional class variants of historical materialism to underscore the multifaceted nature of capitalist oppression which straddles through race, patriarchy and culture. For instance, Rob Knox’s recent scholarship has highlighted the concepts of ‘value’ and ‘race’ are but two side of the same coin and that any materialist mode of analysis needs to consider them together. Similarly, Chimni’s “Integrated” Marxist analysis supplements issues of class with that of social feminist and post-colonial theory has been received approvingly both within the TWAIL and Marxist community. Ntina Tzouvala in her materialist history of the concept of ‘civilization’ addresses how a particular conception of race, gender and sexuality operated as tropes for European international lawyers to infantilize, racialize and feminize non-Western communities while laying the groundwork for capitalist expansion. Her work is also instrumental in bringing together insights from ‘indeterminacy’ in the CLS tradition within a Marxist framework of capitalism and its contradictions. Ruth Fletcher’s work is equally inspiring in thinking through Pashukanis’s commodity form theory from a feminist perspective to foreground the role of social reproduction within notions of value in commodity exchange. These and many other voices have in some sense made Marxist analysis of law and international law respond to and reflect on the many dimensions of social relationships that continue to change, evolve and transform under the conditions of global capitalist accumulation. Here the emphasis is not that 'class' analysis ought to be displaced, but that "class realizes itself and becomes embodied through gender, race, sexuality...". This is the direction that future Marxist international legal scholarship must embrace.

Further Readings

• Source I
• Source II

Footnotes

Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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Required knowledge: Link

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