Author: Jane Doe


Required knowledge: Link

Learning objectives: Gaining enough background-knowledge on international legal history to understand the references to histories in the following sub-chapters and other chapters of the book.

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A. Introduction edit

Scholarly disciplines and fields of expertise more generally are constituted through how they tell their own history. Therefore, it is impossible to understand public international law both as a field of study and as an area of practical expertise without understanding its history. This does not mean that one can 'uncover' the 'true nature' of international law by finding a fixed origin or reveal the right way of interpreting specific legal doctrines by looking at their origins. In her book on International Law and the Politics of History, Anne Orford has powerfully laid out why international lawyers' thirst for certainty cannot be quenched by turning to history. What turning to history can do, however, is teach us something about the predominant self-images of the discipline through the way it habitually tells its own history. These self-images play such a crucial role in international legal histories that one may go as far as calling them 'fan fiction'.[2] Of course, histories of international law also teach us something about how certain rules, institutions, concepts, doctrines, and apparent truths were created, and about how the law contributes to carrying 'past' injustices into the present. Perhaps most importantly, learning about how international law came about and about how it contributed to domination, exploitation, and injustice more generally means learning about how the world can be changed for the better.

To this end, the overall approach of this book is to include historical contextualisation in all parts of the book. The purpose of this chapter on the history of international law is to provide the necessary background knowledge to be able to connect these specific historical contextualisation and to place them in a broader picture. To this end, this introductory sub-chapter, first, offers some brief observations on the different ways in which international law as a discipline conceives of its origins, as well as on different ways in which 'origin stories' of individual areas of international law can be told. Second, it expands on some of the most important turning points, which mark a 'before' and 'after' and which are often referenced when talking about the development of important areas of international law. Third, it offers a glimpse into the contradictory nature of international law and its history, by introducing an account of the history of international law as a history of both empire and resistance. The following sub-chapters will then expand on selected topics, which are particularly important for understanding influential accounts of international law's origins, turning points, and contradictions. The origins of international law are further scrutinized in the sub-chapter on founding myths[3], while important turning points and accounts of domination and resistance are discussed in more detail in the sub-chapters on the nineteenth century[4] and on decolonisation[5].

B. Origins and International Law edit

Histories of something necessarily have to start somewhere. Different approaches to history as a discipline and to using history in international law are partly characterised by different ways of both choosing the starting point and portraying the role of this starting point. The standard way of telling the history of international law consists in presenting a starting point that offers a foundation to international law, a point in time that reflects international law's 'original identity', thus assuming ‘the existence of immobile forms that precede the external world of accident and succession’.[6] The most popular starting point in this sense consists of the combination of Hugo Grotius' work De jure belli ac pacis (Latin: Of the Law on War and Peace) in 1625 and the Peace of Westphalia in 1648. This typical starting point in telling the history of international law also typically coincides with a conception of history as an endeavour that portrays 'how it really was' in the past. [7] A different way of conceiving of origins consists in searching for starting points not as points in time marking the 'birth' and foundation of something, but rather as the circumstances that best explain the emergence, formation, and heritage of something. International legal scholars who rely on a (loosely) Foucauldian notion of 'genealogy' adopt this latter stance towards origins.[8] A third way of engaging with history rejects such origin stories altogether, arguing that events, ideas, and people of the past have to be examined not for what they brought about but for the role they played in their own time.[9] However, as Anne Orford has famously remarked, lawyers are typically trained to make meaning move through time.

Moreover, choosing a starting point for the history of international law one wants to write presupposes that one knows, at least roughly, what international law is. If international law is understood as the law that governs the relationship between sovereign States, then the starting point in the history of international law has to depict how States and sovereignty emerged and how and when they started to have relationships governed by law. If international law is, more broadly, understood as the law of global encounters, then one may conclude that the encounters that shaped the laws continuing to govern global encounters today emerged not (primarily and exclusively) in encounters between States, but between Empires such as the Spanish, Portuguese, Dutch, and British Empire and between one or more of these Empires, the people living on the land these Empires sought to conquer, and the companies they sponsored to carry out these conquests.

[Reflections on origin stories of individual branches]

C. Turning Points in the History of International Law edit

I. Portuguese and Spanish Colonial Conquest and the Treaty of Tordesillas (1494) edit

As pointed out above, one way of telling the history of international law is as a history of colonial encounter. The first period of European colonialism was marked by a rivalry between Portuguese and Spanish conquistadores (Portuguese and Spanish: 'conquerors'), who were sponsored by the respective monarchs to 'discover' and conquer the rest of the world. While the Portuguese, over the course of the fifteenth century, sailed the Atlantic coast of Africa and reached the Indian Ocean by these routes, the 'Catholic Monarchs' Isabella I of Castile and Ferdinand the II of Aragon provided funds for Christopher Columbus' plan to find a way to the Indies by sailing westward through the Atlantic. Instead of India, Columbus reached the island named Ayiti or Quisqueya by its Taíno inhabitants, but which Columbus claimed to have 'discovered' and proceded to call 'Hispaniola', a Latinized way of saying 'Spanish'. The 'discovery' of this island and other islands in the Caribbean during Columbus' first expedition propmpted the Catholic Monarchs to seek the support of Pope Alexander VI for their claim to the 'New World' immediatley after Columbus' return in 1493. After ongoing colonial rivalries between the Spanish and Portuguese monarchs and respective papal bulls and treaties, the details of which cannot be recounted here,[10] the Catholic Monarchs on one side and Joao II, King of Portugal, on the other side, divided up their speheres of influence in the Atlantic by agreeing on a new demarcation line in the Treaty of Tordesillas, which was signed on June 7th, 1494. The Treaty of Tordesillas marks an important turning point in the history of international law, not only because the spheres of influence outlined in this treaty established the division between Hispanic and Portuguese parts of the Americas - the latter constituting today's State of Brazil - but also because it marks an important step away from relying on purely Papal authority and grounding legal claims in inter-state agreements instead. In this sense, the Treaty of Tordesillas may be seen to be part of the origins of international law both as the law of inter-state relationships and as the law of colonial encounter. Other important steps in this development consist in the Treaty of Zaragoza, signed in 1529, which constitutes the first instance in which one of the colonising states formulated a legal claim to the land in the Americas based on so-called 'first discovery'. A synthesis between different sources of claims to land and authority is formulated by Francisco de Vitoria in 1537-1539 in his lectures De Indis (Latin: 'Of the Indies'), a work which Third World Approaches to International Law (TWAIL) consider to be a decisive element of international law's origins.[11]


II. Sovereignty and Secularism on the European Continent and in the Colonial Encounter edit

As stated above - and as will be reiterated throughout the book - the dominant way of characterising international law is as the law that governs the relations between sovereign States. The end of the sixteenth and, more importantly, the seventeenth century, are crucial for the emergence of sovereignty as the paradigm governing the relationships between political entities. These political entities, on the European continent, merged from being mainly Empires, cities, leagues of trading posts such as the Hanseatic League, and other actors to being mainly organised as States. When Jean Bodin published his work titled Six Livres de la République (English: 'Six Books of the Republic') in 1576, which contained the now canonical definition of sovereignty as 'absolute and perpetual power' and of accountability of the sovereign Prince 'only to God', this description was still largely counterfactual. Over the course of the seventeenth century, sovereign States did, however, gain the ability to control their territory, as the grounds for authority shifted from an interpersonal to a territorial model. This provided sovereign States with the necessary authority and political continuity to commit themselves externally as States rather than as individual monarchs or other rulers.[12]

Simultaneously, chartered companies like the Dutch East India Company, which was founded in 1602, exerted a slightly different kind of sovereignty on the territories and on the parts of the sea where they sought to establish trading monopolies or, where they lacked the necessary control to establish such a monopoly, to push for freedom of travel and trade. Among the influential figures who advocated for freedom of the seas and free trade in this sense and in the interest of the Dutch East India Company was Hugo Grotius, whose first work, De mare liberum (Latin: 'Of the free sea'), was, in its first version, commissioned by the Dutch East India Company. With his work De jure belli ac pacis libri tres (Latin: 'Three books on war and peace'), Grotius provided a comprehensive work on international law and a synthesis between naturalist conceptions of the law, i.e. conceptions that base the validity of the law on a source outside of the law like God or reason, and positivist conceptions that derive the validity of the law from legal rules themselves and from the will and consent of the sovereign. These two characteristics of De jure belli ac pacis libri tres - its comprehensive systematicity and its combination of naturalist and positivist concepttions of law - earned Grotius the title of 'father of international law', which will be problematised in the following sub-chapter on international law's founding myths. The second element that is, next to Grotius, part of most origin stories of international law is the Peace of Westphalia of 1648. The peace treaties of Münster and Osnabrück, which together form the Peace of Westphalia, marked the end of the Thirty Years War on the European continent, a war fought along religious lines between catholic and protestant rulers. In confirmation of the earlier Peace of Augsburg of 1555, which established the principle cuius regio eius religio (Latin: 'whose realm, their religion'), the Peace of Westphalia was the focal point of a longer development that resulted in the establishment of a system of sovereign States centered around territoriality and the prohibition of outside interference. 'Westphalia' is therefore also often used as a chiffre for describing an international system characterised by unfettered State sovereignty and little to no rules governing how States are to exercise their sovereignty - especially within their territories.

D. The History of International Law as a History of both Empire and Resistance edit

Further Readings edit

  • Source I
  • Source II

Conclusion edit

  • Summary I
  • Summary II

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
  2. Tamsin Philippa Paige, ‘I Just Called History, as a Discipline, Fanfic* and I’m Not Sure That I Want to Walk That Back *i Didn’t Mean This in a Pejorative Way but People Seem to Take It That Way‍’ (Twitter, 25 May 2023);https://twitter.com/Paging_Dr_Paige/status/1661623415034486784; accessed 20 June 2023.
  3. On Founding Myths, see González Hauck, § 1.1, in this textbook.
  4. On the Nineteenth Century, see González Hauck, § 1.2, in this textbook.
  5. On Decolonisation, see Soomro, § 1.2, in this textbook.
  6. Michel Foucault, ‘Nietzsche, Genealogy, History’ in Michel Foucault, Donald F Bouchard (ed), Donald F Bouchard and Sherry Simon (trsls), Language, Counter-Memory, Practice (Cornell University Press 1977) 142.
  7. Ranke
  8. Michel Foucault, ‘Nietzsche, Genealogy, History’ in Michel Foucault, Donald F Bouchard (ed), Donald F Bouchard and Sherry Simon (trsls), Language, Counter-Memory, Practice (Cornell University Press 1977) 145.
  9. [references from contextualist school]
  10. For an overview, see Thomas Duve, 'Treaty of Tordesillas', in Max Planck Encyclopedia of Public International Law, paras 4-10.
  11. Anghie
  12. Hendrik Spruyt, The Sovereign State and its Competitors (Princeton University Press 1994).



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 edit

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 nineteenth 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.[1]

B. Disputed Parenthood edit

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

1. Hugo Grotius and the Grotian Tradition in International Law edit

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.[2] 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 treatise of international law. The myth of Grotius as the 'founding father' of international law is an invention of the late 19th 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.[3]

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.[4] 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.[5]

'Grotian' may be seen as shorthand for liberal internationalism[6], 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.[7] 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'.[8] 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,[9], to assess the role of international law after the invasion of Iraq in 2003,[10], to argue for the emergence of instant customary law in the field of international criminal law,[11], and to describe changes in the law of statehood.[12] 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.[13]

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.[14]

2. Francisco de Vitoria edit

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.[15] 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'],[16] and they were obviously concerned with a colonial relationship.[17] 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.[18]

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

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? edit

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'.[19] 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.[20]

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

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.[21] 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.[22] Gross was not the first one to pinpoint the beginning of ‘modern international law’ to the Peace of Westphalia[23] 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.[24] 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’.[25] 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.[26] 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’.[27] 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.[28]

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.[29] 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.[30] 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'.[31]

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’.[32] 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.[33]

Further reading edit

Conclusion edit

  • Summary I
  • Summary II

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. Anne Orford, International Law and the Politics of History (CUP 2021).
  2. Martine Julia 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) 82, 84.
  3. Martine Julia 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) 82, 88-89.
  4. Sué González Hauck, Systemic Interpretation in International Law, Dissertation No. 4888, University of St. Gallen (2019), 48-49; Hersch Lauterpacht, 'The Grotian Tradition in International Law' (1946) 23 British Yearbook of International Law 1; Stefan Kadelbach, 'Hugo Grotius: On the Conquest of Utopia by Systematic Reasoning' in Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit (eds) System, Order, and International Law (OUP 2017) 134, 155.
  5. Hedley Bull, The Anarchical Society (Macmillan 1977) 23-25; Barry Buzan, 'The English School' (2001) 27 Review of International Studies 471, 476; Richard Little, 'The English School's Contribution to the Study of International Relations' (2000) 6 European Journal of International Relations 395, 396.
  6. For a recent exposition of the history of liberal internationalism and for an assessment of its ongoing crisis, see: Beate Jahn, 'Liberal internationalism' (2018) 94 International Affairs 43.
  7. Sué González Hauck, Systemic Interpretation in International Law, Dissertation No. 4888, University of St. Gallen (2019), 53.
  8. Boutros Boutros-Ghali, 'A Grotian Moment' (1995) 18 Fordham International Law Journal 1609, 1609
  9. Samuel K Murumba, 'Grappling with a Grotian Moment' (1993) 19 Brooklyn Journal of International Law 829.
  10. Ibrahim J Gassama, 'International Law at a Grotian Moment: The Invasion of Iraq in Context' (2004) 18 Emory International Law Review 1.
  11. Michael P Scharf, 'Seizing the 'Grotian Moment (2010) 43 Cornell International Law Journal 439.
  12. Milena Sterio, 'A Grotian Moment' (2011) 39 Denver Journal of International Law and Policy 209.
  13. Sué González Hauck, Systemic Interpretation in International Law, Dissertation No. 4888, University of St. Gallen (2019), 54.
  14. 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, at 154.
  15. James Brown Scott, The Spanish Origins of International Law: Francisco de Vitoria and his Law of Nations (Clarendon Press 1934) 3.
  16. , translations of the titles from Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (CUP 2005) 13, n. 4.
  17. Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (CUP 2005) 14.
  18. Paolo Amorosa, Rewriting the History of the Law of Nations: How James Brown Scott Made Francisco de Vitoria the Founder of International Law (OUP 2019) 1.
  19. Maria Teresa Guerra Medici, 'The mother of international law: Christine de Pisan' (1999) 19:1 Parliaments, Estates and Representation 15-22.
  20. Franck Latty, 'Founding "Fathers" of International Law' (EJIL:Talk! 15 January 2019) <https://www.ejiltalk.org/founding-fathers-of-international-law-recognizing-christine-de-pizan/> accessed 10 November 2021.
  21. Gerard J Mangone, A Short History of International Organization (McGraw-Hill 1954) 100.
  22. Leo Gross, ‘The Peace of Westphalia, 1648-1948’ (1948) 42 American Journal of International Law 20.
  23. See, e.g., P H Winfield, The Foundations and the Future of International Law (Cambridge University Press 1942) 18: ‘Modern International Law dates from the Peace of Westphalia, 1648. It was then recognized that states are units in an international society with mutual rights and oblugations’; Franz von Liszt and Max Fleischmann, Das Völkerrecht systematisch dargestellt (12th edition Julius Springer 1925) 21; Franz von Liszt, Das Völkerrecht systematisch dargestellt (O. Haering 1898) 11.
  24. Leo Gross, ‘The Peace of Westphalia, 1648-1948’ (1948) 42 American Journal of International Law 20, 32.
  25. Leo Gross, ‘The Peace of Westphalia, 1648-1948’ (1948) 42 American Journal of International Law 20, 28.
  26. See, specifically on Gross’ influence in this regard: Stéphane Beaulac, ‘The Westphalian Legal Orthodoxy – Myth or Reality?’ (2000) 2 Journal of the History of International Law 148, 149; Rainer Grote, ‘Das “Westfälische System” des Völkerrechts: Faktum oder Mythos?’ in Andreas von Arnauld (ed), Völkerrechtsgeschichte(n) (Duncker & Humblot 2017) 21, 22-23; Friedrich Kratochwil, ‘Legal Theory and International Law’ in David Armstrong (ed), Routledge Handbook of International Law (Routledge 2009) 55, 59-60.
  27. Leo Gross, ‘The Peace of Westphalia, 1648-1948’ (1948) 42 American Journal of International Law 20,20.
  28. Leo Gross, ‘The Peace of Westphalia, 1648-1948’ (1948) 42 American Journal of International Law 20, 21-26.
  29. Oliver Diggelmann, ‘Die Entstehung des modernen Völkerrechts in der frühen Neuzeit’ in Tilmann Altwicker, Francis Cheneval and Oliver Diggelmann (eds), Völkerrechtsphilosophie der Frühaufklärung (Mohr Siebeck Tübingen 2015) 1; Bardo Fassbender, ‘Die verfassungs- und völkerrechtsgeschichtliche Bedeutung des Westfälischen Friedens von 1648’ in Ingo Erberich et al (eds), Frieden und Recht (Richard Boorberg Verlag 1998) 9, 22; Andreas Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’ (2001) 55 International Organization 251, 260-262.
  30. Bardo Fassbender, ‘Westphalia, Peace of (1648)’ in Rüdiger Wolfrum (ed) The Max Planck Encyclopedia of Public International Law, Vol X (Oxford University Press Oxford 2012) 865-869, 868 para 21.
  31. Maïa Pal, Jurisdictional Accumulation. An Early Modern History of Law, Empires, and Capital (CUP 2021) 35.
  32. Andreas Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’ (2001) 55 International Organization 251, 251: '“Westphalia” constitutes the taken-for-granted template against which current change should be judged‘
  33. Tamsin Philippa Paige, Petulant and Contrary: Approaches by the Permanent Five Members of the UN Security Council to the Concept of 'threat to the peace' under Article 39 of the UN Charter (Brill Nijhoff 2019) 29.



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A. What is Decolonisation? edit

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-20th 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”.[2] 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”.[3] 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.[4] 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.  

B. Decolonisation as ‘Inclusion’ into International Society:  A State-Centric History of International Order edit

International law scholars borrow their understandings of the term decolonisation from the sister disciplines of political theory and international relations. The classical understanding of decolonisation draws upon Hedley Bull’s 1984 exegesis on the ‘expansion of international society’.[5] In this account of the history of international order, a sharp break is posited between the world during colonialism and the world after it.

The state features as one of the most important basic units in the practice and study of international law and global politics. The history of the state is also vital to understanding the meanings, possibilities and limitations of ‘decolonisation’ in the contemporary age. The origins of the modern state are often narrated as beginning in Europe, with the Treaty of Westphalia 1648.[6] Historians have shown that it is far too simplistic to argue that the modern state was born from the Treaty of Westphalia in the 17th century, and have shown a range of other historical genealogies in which its emergence can rightfully be placed.[7] Nevertheless, the myth of Westphalia remains an important heuristic: a highly simplified analytical tool rather than factual record. As the basic political unit of international order, in international legal theory, a state is a recognised as a “sovereign”. During the longue durée of colonialism, the body of thought that today we will readily accept as international law operated with a pernicious eurocentric and racial bias. While European monarchs, and heads of state were readily accepted as legitimate and worthy members of international society, this was not the case for the rest of the world.

The legal and political theory status of European colonies —the majority world, was firmly organised around the racialised ‘standard of civilisation’.[8] In the worldview of European jurists, non-white and non-Christian societies were seen as too backwards, childlike and savage to be considered complete legal and political subjects. Despite the development of ideas about liberty and equality in Enlightenment Europe, these noble ideas were not reserved for European men. Everybody else was still considered as lacking legal capacity for self-rule. Anghie has powerfully shown that international law imagined the world outside Europe as being devoid of “sovereignty”, an attribute that was solely reserved for European societies. Accordingly, it was posited that European colonial officers would govern these backwards people, and civilise them in the ways of the modern world. This was the infamous “white man’s burden” that continued well into the 20th century. It is an ugly feature of international law that 19th and 20th century doctrine only conferred juridical capacity on the basis of race and religion.[9] Legal theory drew upon a self-serving worldview that placed Europe at the centre and apogee of world development and forced unequal and non-reciprocal relations on the rest of the world via the construct of perpetual and temporary legal burdens: “Permanent burdens encroached on the sovereignty of the other and created effects that impaired the other’s ability to act on its own behalf. Such burdens, designed to last in perpetuity, disallowed all future denunciations by the burdened party.”[10]

Today, it is hardly a controversial claim to say that historically, international law facilitated and justified European colonial expansion and the domination through its theories and doctrine.[11] This starkly unjust system of organising political power comes clearly into focus if we consider Article 22 of the League of Nations Covenant. After the first world war, the Allied powers seized the colonial holdings of the losing powers, namely the Ottoman Empire and Germany. Article 22 states: “To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.”[12] The same provision further illustrates the racial principle underwriting international legal thought at the time. In article 22, it is further recognised that peoples’ belonging to the former Turkish Empire had reached a “stage of development” sufficient for them to be granted independence.[13] By contrast, the people of Africa, South Pacific Islands and beyond were not yet considered competent for self-government. Subsumed under the sovereignty of Europeans, certain colonial holdings simply passed from one European sovereign to another, like war loot. Getachew stresses how even those exceptional regions that managed to avoid formal colonisation, such as Ethiopia, were similarly rendered into the actions of the League rendered “impossible” black sovereignty.[14] This racial governance was, of course, contested: the problem was that international law itself had not yet acquired sufficient tools and vocabulary to address the problem of colonisation. The historian Erez Manela has shown, when Woodrow Wilson wrote his fourteen points charter for self-determination, it was not intended to apply to the whole world.[15] Rather, Wilson’s campaign for self-determination only extended to peoples of Central and Eastern Europe.[16] Historically, in the eyes of international law, it was inconceivable for a non-European state to exist in relations of equality with their counterparts in Europe.[17] The extension of racial worldviews into legal doctrine meant that non-Europeans could not be bearers of a right to self-determination. As James Crawford notes: “self-determination is, at the most basic level, a principle concerned with the right to be a State.”[18] “Sovereignty” was an essential quality of statehood, which was basically unavailable to most non-European societies. The Montevideo Convention on the Rights and Duties of States 1933 is today considered the formal criteria for statehood in international law.[19] Article 1 lays out the requirement for a) government b) territory c) population and d) a capacity to enter into international relations.[20] While it may very well be argued that numerous non-European polities fulfilled this criteria, racial dogma excluded them from ‘government’ and the ‘capacity to enter into international relations’. As Bull puts it “political entities were entitled to recognition as sovereign states only if they met certain formal criteria of statehood.”[21] And as Anghie has further shown, this was historically considered exclusively the reserve of European peoples. A voluminous literature has highlighted the numerous issues at stake in the recognition of a new state in international law: the two major approaches to state recognition have been the doctrine of ‘constitutive recognition’ and the doctrine of ‘declarative recognition’.[22] The first refers to the historical state practice, where it is not enough for a state to declare itself independent and sovereign, it also had to be accepted by international society. On this point, Bull notes: “the doctrine that states do not have sovereignty apart from recognition of it by others, the doctrine of so-called ‘constitutive recognition’ which European states in the late nineteenth and early twentieth centuries came to apply to Asian and African states is one which is widely viewed today as having been an instrument of European dominance.”[23] The latter —the doctrine of declarative recognition of statehood, is today considered more important, but still, a tension between the two does continue to exist. To this end, we might say that the recognition of statehood remains essentially tied into global power politics.

The above described legal and political doctrines about sovereignty, self-determination and statehood had major implications for what international lawyers considered to be ‘the international’ of international law. During the centuries of colonial rule of the earth, the Westphalian state system only referred to Euro-American international affairs. In the 1950’s, Carl Schmitt, the European international lawyer, wrote that international law was the realm of European states, their practices of knowing and relating to each other.[24] Despite these legal doctrines, and political violence of the colonial international order, ideas about self-determination were appropriated and demanded across the different continents.[25] Throughout the early 20th century, independence movements were fomenting and culminated in the decolonisation era in the aftermath of the second world war. Between 1940-1970 the majority of European overseas colonies gained their independence from European Empires. In this regard, ‘decolonisation’ is understood as the recognition of right of self-determination of non-European peoples. In the post-1945 era, European powers recognised the statehood and sovereignty of countries in Asia, Africa and Latin America, and this watershed moment in the history of international order is known as the era of “decolonisation”. The fact of decolonisation is marked as a momentous event in the history of international order. Whereas for centuries it was considered that the non-European world had nothing to do with international law, since the 1940’s there had been a steady stream of new additions joining the United Nations, thereby forever changing the composition of ‘the international’. Decolonisation can be best pictured if we consider the evolution of the world map over the past two centuries. Coggins notes that, in 1816, the international system comprised of only 25 members. Over the course of the 20th century, the international order witnessed the birth of 150 new states.[26] Not all of these were born from the succession of colonial empires, but this does hold true for the vast majority of the new additions. The world went from being represented as a collection of European empires, to a system of neatly bordered, formally equal, political units— the Westphalian state system.

This was the context in which Hedley Bull and Adam Watson, scholars of International Relations wrote their theory of the Expansion of International Society.[27] This account has taken up a canonical status in the history and theory of international order. In their understanding, a truly universal international space only came into being at the time of the decolonisation era. Their main argument was that former colonies, who were up until the moment of their independence excluded from international society, came to be finally ‘included’ in the system of international relations once they gained Independence. In this way, the international realm, once only reserved for European states, transformed into a universal society of states. Today, when we speak of the Westphalian world system, we are alluding to the idea of formally, equal, sovereign states, co-existing together in a condition of anarchy. No legal authority governs over these.[28]

The independence movements that swept the globe during the mid-late 20th century had profound effects on both the history and theory of “international order”. As Bull suggested, one way of charting the expansion of international society was the expanding membership of the United Nations, and the related fora of international law-making.[29] The presence of an ever more diverse body of representatives at the international organisations, such as the United Nations General Assembly and other international platforms called for a renewed theorisation of these developments of international order. The changing composition of international society also stirred a change in the doctrines of international law. In 1960, General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples.[30] It declared: “all peoples have the right to self-determination” and to pursue the path of their own economic, social and cultural development. It further condemned and outlawed those historical narratives of colonial domination that posited non-European peoples as childlike and unprepared for self-government.[31] This Declaration was widely pushed through by the African bloc at the United Nations, and Getachew has described it as a “radical rupture” in the history of international order.[32] Within a very short period of time, anticolonial movements had hacked away at the assiduous idea that certain races of mankind were not prepared for self-government and replaced it with the idea that self-determination was a fundamental human right. For instance, the earlier Universal Declaration of Human Rights 1948, makes no mention of self-determination. This was an intentional framing to ensure no further challenges to European territorial empire.[33] By the 1960’s colonialism was considered an international crime, and self-determination emerged as a fundamental human right.[34] In the jurisprudence of international law, the idea was taken up and extended into more concrete principles of international law.[35]  Since the decolonisation era, the international court of justice has declared the principle of self-determination to be a general principle of international law[36] as well as being of such a unique and special nature, as to having an erga omnes .[37]


           Watson and Bull’s ‘inclusion thesis’ posits that “the global south” was included in international society for the first time during the post-world war II era. By inclusion into international society, there is also a further, assumption about ‘the end of colonialism’ and the onset of a fair world system governed by human rights and the rule of law. As Grovogui noted, in the post-1945 order there is a strong assumption that colonialism was over.[38]We can all agree that the decolonisation era was in many respects a rupture from the old, explicitly racialised system of managing international law and politics. Not only were the international institutions undergoing a change with the admission of new states, but also, these new states were sparking new developments in the doctrines of international law. Above we have discussed the recognition and development of the principle of self-determination. By the same token, we should be wary of crediting the historical decades of the 1940’s-70’s, as symbolising a far greater or radical break from the past. Let us now consider some of the shortcomings and critiques of equating the decolonisation era with decolonisation as completed.

C. Thinking Beyond the ‘Inclusion Thesis’ and the Long Road to Decolonisation edit

A number of problems open up when we take a closer look at this “inclusion thesis”. An enormous volume of international legal and political theory has addressed the shortcomings of taking the Westphalian Peace as our starting point for discussing international affairs.[39] While it is beyond the scope of this essay to cover the breadth of this literature, I will limit my discussion to the problem of the state and the remaining problem of inequality within the international order since the Independence era. The ‘inclusion thesis’ narrates a progressive, eurocentric history of international order.[40] It tells the history of international society as one of constant betterment, whilst also placing Euro-American or Western societies at the centre and the benchmark against which all others are gauged.[41] The main point worth stressing here is that while it is largely assumed that once former colonies gained their status as independent states in their own right, colonialism was over. Instead, in recent years, a critical historiography of international order has highlighted the need to rethink what we mean when we talk about decolonisation. Rather than thinking in terms of a sharp break:  a before and after colonialism, it makes more sense to talk about “decolonisation” as a more hopeful, forward-looking ideal. The recognition of statehood is just one, albeit crucially important step, in the long road to decolonisation.


Both postcolonial and decolonial traditions start from the recognition that inequality in the global order is tied into structural inequalities, formulated in law, reproduced through legal practice and international institutions. While these were born from the colonial era, they have certainly changed form over time. Additionally, in recent years, scholars of international law have started to recognise that international law scholars do not merely describe legal practice, they actively shape it too.[42] To this end, our knowledge systems are equally important in shaping the normative content of international law. The ‘post’ in postcolonial or the ‘de’ in decolonial, as theoretical traditions do not stand for the temporal idea, after colonialism, signifying the end. Rather they point to a body of knowledge, that seeks to contest and highlight colonial domination and its legacies.[43] Third World approaches to International Law (TWAIL) thus try to take on the role of critique and transformation through engaging with the colonial encounter. In the following section, I outline the disjuncture between the theories and practice of Statehood and non-western agency within international order. The objective of my discussion is to show that far from being over, decolonisation is an ongoing practice that involves the practice of reflexivity, critique, and eventually the hope of transformation. As Getachew has put it: “Rather than tether the idea of independent and equal states to the legacy of Westphalia, we should identify this vision of international order with an anti-imperialism that went beyond the demand for the inclusion of new states to imagine an egalitarian world order.”[44]


I. Statehood:  The End or the Beginning of Decolonisation? edit

The first line of critique is that the formal recognition of statehood did not go far enough to alter the relations of power flowing through the international system of states. There is a common misunderstanding that the post-1945 era somehow also marked the end of colonialism. “The proponents of these views have presumed decolonisation to be an end in itself.”[45] Today we know very well, that the decolonisation era did not birth a perfect international order of equality and justice. While the legal-political theory concept of the Westphalian world system composed of equal, sovereign states is a useful heuristic, this could not be further from reality. Great powers continue to dominate the international order and the most disenfranchised communities of the world continue to suffer exploitation, low standards of living and are also expected to bear the harshest effects of impending environmental and climate disasters. To this end, a number of have argued that the power relations born from imperialism merely transformed or changed shape but the core issues of “civilisation” or essential difference between the west and rest is continually reproduced.[46]


Watson and Bull’s account of the expansion of international society tells a progressive story about the state, as arising through purely European agency during the 17th century, Peace of Westphalia. The European origins of the state are then placed in a linear story of progress, where over time, the entire world would come to adopt this model of political organisation. As far as the newly independent states were concerned, their main role was to follow the model of Europe and emulate development through the guidance and voluntary charitable development aid of the west. This historical framing is eurocentric, to the extent, that it still places European societies as the universal benchmark, which all others should aspire to and are judged.[47] Further, it leaves us with very limited analytical tools to understand and talk about the power differentials between the global north and south. 

If it is true that European states emerged from the Peace of Westphalia in the 17th century, what role did colonialism play in the formation of these states? The Westphalian myth implies that these states arose endogenously out of purely European agency. When Vattel was writing about the family of European nations, each equal and sovereign, he was committing a quite problematic theoretical blunder by saying nothing about the same states’ overseas colonial holdings.Closing </ref> missing for <ref> tag Bhambra even argues that it does not make sense to even talk about a Westphalian system of states prior to the decolonisation era. All the states that were supposedly involved in this system, were actually imperial-nation states.[48] This point was not unknown to the politicians and thinkers of bygone eras. In fact, we may say this was precisely the context in which early anti-colonial thinkers such as Aimé Césaire spoke of the intimate relationship between the coloniser and the colonised.[49]


As for the newly emergent states, we are the left to wonder why it is despite their putative decolonisation, they continue to be haunted by war, poverty and human suffering. In other words, how do we explain the fact of their ongoing subordination in international society? Positivist understandings of international order will blame these purely on internal factors (corruption, bad governance, cultural deficiency) rather than external factors (their position and role in international society). By contrast, leaders of decolonising nations knew very well that they were being born into a world that was stacked against them. Kwame Nkrumah, a leader of the Pan-African movement, and the first premier of Independent Ghana had devised the term “neo-colonialism” to grasp at the particular problem of third world states. He described neo-colonialism in the following terms: “the State which is subject to it is, in theory, independent and has all the outward trappings of international sovereignty. In reality its economic system and thus its political policy is directed from outside.”[50] In his regard, “independence means much more than merely being able free to fly our own flag and to play our own national anthem.”[51]  Even during the decolonisation decades, many of the thinkers and leaders of anti-colonial movement were quite clear on one thing:  that the recognition of statehood itself did not go far enough in the establishment of de facto equality in the international system. By this token, the recognition of sovereignty was considered merely a formalistic first step, but the more pressing and urgent matter was how a different, more egalitarian world would be made. Contemporaries of the time clearly recognised that the utopian project of building a better world was still a pending matter. The question of how exactly such a future would be built was fraught, but nevertheless, a point worthy of debate and discussion. this point. Moreover, while many of the newly emergent states hoped that international law would be a useful vehicle for enacting change, as we shall see in 3B their efforts to author change has historically been resisted, and thwarted by former colonising powers.


A formalistic fixation on the Westphalian world system as implying de facto equality in the international order has important theoretical implications. In recent years, a large body of global history research has suggested that rather than thinking of the state as having a neatly bordered off history, it is more appropriate to think of it as entangled within a larger web of relations.[52]  Similarly, Marxist inspired understandings of ‘world systems’ also indicate that it is premature to celebrate the end of colonialism. Barkawi and Laffey have instead noted that focusing only on the Westphalian model of international organisation “obscures” the ongoing role of imperialism in international affairs.[53] Instead, they propose “a thick set of relations”. This may include many things, including economic, political, military and social-cultural relations which allow us to gain more meaningful insight into how hierarchy is still a feature of contemporary world affairs. Getachew similarly insists, that we need to revise our understanding of decolonisation to understand what kind of work was being performed by colonialism. She proposes the concept of “unequal integration”.[54] Contra the ‘inclusion thesis’, Getachew powerfully argues that it is wrong to think that at any point in world history, the colonies were somehow ‘outside’ of international society. They have always been part of the same world, but have always been subjected to regimes of domination. She suggests, “colonies and peripheral states were internal to international society but appeared in that space as unequal and subordinated members.”[55] Despite the fictions and self-serving theories of imperial narratives, the colonies were always members of the international realm, but rather they existed in a position of partial and burdened membership in international society. This did not stem from exclusion, but rather from inclusion on more burdened terms.[56] In sum, Getachew suggests that there is a long continuity from empire, to the international to the contemporary era of global governance. She shows how it is both empirically and theoretically incoherent to assume, as Bull and Watson do, that colonies simply didn’t exist in international society. They were very much part of the international family of nations, but they existed in a subordinated position. And they continue to be subordinated. In this sense, despite all the advances and rising powers, for the most part the position of the global south, remains still at the bottom of a hierarchy. This is most starkly visible when we think about climate change, corona virus response and vaccine distribution, and even more everyday governance practices of mobility, refugees, etc.


The ‘inclusion thesis’ posits a limited, state-centric understandings of decolonisation. In the last twenty years, an illustrious list of scholars have turned their focus to the problem of the supposed ‘end’ of colonialism at some point during the post-1945 order. To this end, we might argue that rather than focusing on ‘the state’ as the end-form and goal of decolonisation, it might be argued that it is more appropriate to see the acquisition of sovereignty and statehood as the beginning of the long road to decolonisation. It is important to point out that the primary subject of international law is the state. The Westphalian state system refers to a kind of de jure equality, which means that the law does not account for power hierarchies in its assessment of legal questions. Accordingly, the courts have tended treat “decolonisation” as synonymous with the acquisition of statehood.


The ICJ has attended to a number of cases that dealt with the multifaceted issue of decolonisation.[57] The practice of the courts suggests that “decolonisation” is complete at the moment when political rule is transferred from European hands to local hands —purely as a matter of self-rule. Take for instance the recent advisory opinion on the Chagos Archipelago.[58] The ICJ was asked to advise on whether the decolonisation of Mauritius was complete in 1968 when Britain handed over control of the vast majority of the Islands. In its written submissions, Mauritius itself claimed that decolonisation would only be complete if the territorial integrity of Mauritius was respected and the ongoing occupation of the partitioned Chagos Islands was stopped. To all parties concerned, decolonisation was simply about the ongoing British occupation and administration of parts of territory that belonged to Mauritius. A certain statist logic underlies the very structure of international law—the state is the primary subject of international law. In the jurisprudence we can observe a sharp differentiation between legal and political science approaches to ‘decolonisation’. While international law treats Independence as synonymous with a completed process of decolonisation, social scientific approaches to decolonisation adopt a more cautious approach. In the positivist application of law, courts leave aside, concerns about whether the newly emergent states actually hold any realistic possibilities for breaking from colonial, political, economic and social power asymmetries is simply left untouched. To this end, we can posit a simple question. While international law considers the process of decolonisation as one that is completed upon the acquisition of sovereignty, it leaves open the question of whether this goes far enough?

II. Struggle and Third World Authorship of ‘the International’ edit

Watson and Bull’s theory of international society speaks of the inclusion of former colonies into ‘the international’ as a society of states. While the heuristic of a formally equally system of states is a nice idea, it would be naïve to assume that it is a reality. The Westphalian world system is foremost a theoretical construct. Its key international component—“anarchy” is a recognition that in international law there is no final sovereign authority beyond a state.[59] Nevertheless, as scores of international relations scholars have shown, rather than states actually existing in a state of anarchy, states are embedded in a field of power relations.[60] As we have been discussing in previous sections, it is rather more accurate to say that third world states were born into a world where the rules of international order were firmly entrenched against their favour. The conventional story posits that, by mere inclusion, a truly universal society of states was formed. What then might we say about the relationship between international law and the emergence of a putatively universal international society? Alongside the inclusion thesis, there is a strong assumption that the international law of the post-1945 era was fully decolonised, based on principles of equality and human rights. Rajagopal argues that in this “self-image the new international law of human rights effectively superseded the old international law of colonialism.”[61] There are important qualifications to this sharp break between ‘old international law’ and ‘new international law’. Yasauki suggests that in the decolonisation era, there was no reciprocal and harmonious meeting point of all the world’s legal traditions but rather, there was a universalisation of eurocentric international law.[62] Along with Getachew, we might then argue that the tendency to view ‘decolonisation’ as implying universality and consensus within the international order is more a rhetorical move than it is factual reality.[63] The Inclusion Thesis cuts directly into the question of what is decolonisation, and touches upon the themes of statehood, self-determination and the limits of ‘sovereignty’ as a means of achieving more abstract ideals of global justice and equality. Once upon a time, international law facilitated the colonial expansion and domination of non-western societies. Anghie has shown how the very concept of sovereignty was forged as a legal fiction to aid this practice.[64] Lorca asked how far the rules of international law actually changed after the admission of non-western states?[65] The answer to this question is not so straightforward. Even after sovereignty was extended to non-Europeans, it was clear that this did not translate into a radical revision of global power hierarchies. Moreover, as Lorca suggests, sovereignty itself had run out of steam as a mode of organising international law and relations. What then might we say about international law’s role in facilitating or thwarting the long road to decolonisation?


The answer in large depends on how you understand the history and theory of international order. The ‘inclusion thesis’ narrates historical developments as a process of ‘diffusion’.[66] The diffusion narrative has come under sharp criticism for depoliticising core problems of the international order. This style of re-telling the development of international order completely glosses over the struggles, ideas and agency of the world outside the West. The diffusion narrative tells of the emergence of a decolonised world —the Westphalian world system, through the simple spread of noble ideas, first emerging in Europe and then diffusing through the international order. Europe remains firmly ensconced in the centre:  A major problem with treating colonialism as something that was amicably resolved during the 20th century is that it ‘forgets’ the long history of struggle that has underwritten third world attempts at rescripting the international order in its favour. Hobson has put it in quite sharp terms:  “non-western agency all but disappears into the deep, shadowy recesses of the blinding light cast by Western civilization”.[67]


A diffusionist account which simply reproduces the same structures of colonial knowledge that binds the rest of the world into the game of ‘catching up’ with European societies and erases the struggle, ideas and voices of the non-western world. Recognising this point, over the years, there has been a shift in how scholars address the problem of the third world and its inclusion, or integration in international society. At the time of decolonisation numerous European international lawyers and politicians worried amongst themselves that status quo would be rendered corrupt and unwieldy with the addition of new members.[68] To this end, third world international lawyers also tried to prove that such a threat was not warranted. They went about showing how the so-called purely European legal constructs and political ideals, actually had shared roots.[69] Across diverse areas of international law (and politics) knowledge, it has been shown that ideas such as equality[70], women’s rights[71], the law of the seas[72], the law of nations[73], human rights[74] were born from the colonial encounter. Despite the shared roots of many of the legal concepts and doctrines of international law, the problem of eurocentrism remains. A second generation of TWAIL research has shown that power continues to delimit the normative content of international law and thus, the rules of international order.  The benchmark against which all others are measured and it is then asked of them:  how far they have contributed to the development of supposedly universal rules.[75] It is also worth pointing out that no sooner than the UNGA ‘expanded’ to include a fairer representation of international society, other more exclusive platforms of organising world affairs, such as the G7 began to pop up.[76] Moreover, if we consider the constitution of some of the most powerful arms of the United Nations such as the Security Council, again there is dominance of certain colonial powers.


Recent interventions go a bit further to show that non-western attempts at authoring international order suggest that “decolonisation” had more radical potential than merely the recognition of statehood. In her pathbreaking work, Getachew’s historical research has shown that subsumed under the gloss of the ‘inclusion thesis’ it is possible to glean a number of alternative imaginaries of world order. Getachew conceptualises numerous strands of Afro-Caribbean ideational experiments with how the world might be organised in more equal terms as “postcolonial cosmopolitanism”.[77] Indeed, as I mentioned earlier, leaders of the various independence movements in the third world saw Independence as a necessary first step in the longer road to decolonising international society. Leaders of the past were well aware that these precarious new states were being birthed into a world where their historical role had been to supply labour and raw materials to the metropole.[78] Accordingly, their experiments with internationalism and political economy were geared towards a redistribution of wealth between and inside nations.[79] Attending to their efforts of ‘worldmaking’ or rescripting the international order was a forward-looking, hopeful project about redefining the terms on which former colonies and metropoles related to each other. These clearly went beyond just the fact of recognition of sovereignty or statehood.  


The Bandung Conferences illustrate this point well. In 1955, a conference between leaders of the formerly colonised world was held at Bandung, in Indonesia.   Members from newly independent states, states on the cusp of independence, and those still engaged in the struggle.[80] The aim of the conference was to be a show of solidarity between the colonised peoples of the world —the majority world, but also to begin the important work of re-imagining the terms upon which global order would unfold. Bandung was born from many of the struggles that newly emerging states were facing in the post-1945 international order. Great powers and international institutions were rather more hostile to the first waves of independence than is implied in the “diffusion” narrative. As Lyon suggests, in the 1950’s there was a deadlock over United Nations membership for new states, and a severe backlash against independence movements since 1947-8.[81] Further, the United Nations and developments of international law continued to focus on Cold War rivalries as the more important topic of international law and side-lined the concerns and imperatives of the majority world.[82] It has been observed that the various leaders at Bandung disagreed on many things, including the very key question of what they believed ultimately to be the ‘wrong’ of colonialism beyond simplistically, alien-rule.[83] Of the few things they did agree on, was “developmentalism” accompanied with a broader, idealism that the newly founded states would take an active role in restructuring the terms on which they were integrated into international society.[84] As Eslava et.al argue, it was also hoped that international law would play a key role in creatively remaking the world on more equal terms. The various social, political and economic committees of the Bandung conference went about detailing points for how to go about doing this.[85]


According to the third world movements’ program of reordering the world, economic justice took central focus. Development was considered as a way to overcome power differentials between the West and the rest. The UN Declaration on the Right to Development 1968, framed development as an inalienable right.[86] But as Rajagopal and others have highlighted, the robustness of this development discourse petered out by the late 1960s.[87] It is also pertinent to remember the fierce struggle from which this watered down right to development was forged. International lawyers of the global north argued that  development could not be enforced against anyone in particular, and thus was not a legally enforceable right per se.[88] It gave rise to no new obligations or duties. For the rest, particularly the G77, they authored the NIEO it was one of the most important agendas for undoing the violence of colonialism. Pahuja has shown how successive efforts of by third world alliances to renegotiate the international economic order in their favour were thwarted by Global North actors. She charts how the Global South demand to safeguard ‘Permanent Sovereignty over Natural Resources’ in the 1950’s was gradually hollowed away to a meek discussion about safeguarding foreign direct investment instead.[89] She further, tracks how Third World attempts to renegotiate economic relations in the post-cold war era, spoke in the grammar of the rule of international law between states. Pahuja painstakingly shows how this potentially radical demand was reduced to a conversation about good governance and institution building inside developing states.[90] We might then say that Global North actors went about delimiting the normative content of what development would or could be. Hurrell observes that since the decolonisation era, “all of the high-income countries have been extremely vigilant in resisting anything that might be interpreted as a formal commitment to economic justice.”[91] Power and the continued hegemony of the global north has delimited the normative content of what development would or could be.


Let us now return to the question posed at the beginning of this section. What can we say about the relationship between the Third World and international law since the decolonisation era? The inclusion thesis rests on a thin concept of consent and shared values within an international system. Bull wrote, for instance, that a truly international society only came into being when ‘a common international system’ evolved, where the different European and non-European members came to understand themselves as having “common interests a structure of coexistence and co-operation, and tacitly or explicitly consent[ed] to common rules and institutions”.[92] The question of power nevertheless continues to haunt the law and politics of post-1945 world order. Great power politics still dominate international law. And the concerns of the most vulnerable persons in the world seem to be rendered more and more irrelevant to the developments of international law. To this end, Simpson has referred to “legalised hierarchies” within the international order.[93] Others have asked more pessimistically what the third world may expect from international law?[94] If we accept the inclusion thesis, then we can only arrive at a very cynical conclusion about contemporary international law. The West had figured out what the most ideal forms of political organisation were, and it was now up to the rest to catch up to this image of perfection. Yet as recent work on the North-South divide has shown, the historical Brandt line continues to be relevant today.[95] The third world’s efforts at rescripting the international order in its favour have frequently been thwarted. For the most part international law aligned with the interests of Euro-American dominated status quo rather than opening up any new possibilities for uplifting the peoples and places in the global south. In other words, a sharp discontinuity is not quite warranted. The newly emergent states were bound to certain legal traditions, customs and processes, all of which are equally shaped by power — both historical and contemporary. A North-South divide is a regular pattern in the onward development of international law since the 1940’s, and this point is particularly instructive to our discussions about decolonisation in international law. The inequalities of the international order, then get relegated as matters of knowledge and correct interpretation of supposedly universal rules and customs which are known and articulated by the Universal west.[96]  This has been explored in discussions over climate change,[97] development,[98] definition of racism,[99] law of warfare,[100] and beyond. Baxi points out that the struggle over the normative content of international rules often takes place in the form of a contest over “the technical versus the political elements”[101]. In the same vein, Kennedy is sharply critical of the technocratic global governance literature that elides the politics of economic decision-making under a veneer of expertise.[102] Moyn refers puts the matter quite aptly: “to understand expertise is to grasp how the terms of debate and decision about solutions end up reinstating problems.”[103]


It is often suggested that Bandung was a failure.[104] Despite its idealistic appeal, Bandung failed at achieving many of the hopes that it had nurtured. In the long run, Bandung is part of the legacy of anti-colonial movements and solidarity in the international order. To this end, it has been argued that “if Westphalia serves as the creation myth of international law, the myth of Bandung is its counterpoint”.[105] Certainly, it is vital to recover non-western contributions and challenges to international law. At the same time, it is important not to over-romanticise Bandung.[106] The leaders of the third world  were not perfect. Their nationalism has been critiqued from a  number of angles:  in terms of women’s movements, environment, and more.[107] This critical historiography of Bandung, and the third world movement brings us back to the problem of a state-centric analysis. Or, at least the problems of simplistic narratives about decolonisation. As Chimni has suggested we need not only to be wary of treating the entire global south as a monolith:  not only have various third world elites historically sanctioned off economic prospects for their brethren in their obedience to the demands of economic globalisation. Similarly, it might be argued that a discussion entirely focused on North – South conflict, overlooks the newly emerging BRIC powers and newer projects of transnational capitalist land grab and appropriation across the world.

D. Limits and Possibilities of Decolonisation edit

So far, in this essay I have proceeded by first highlighting the standard account of decolonisation in international law. The classical exposition of ‘decolonisation’ is found in Hedley Bull and Adam Watson’s 1984 text, The Expansion of International Society, which was written more than forty years ago. Since then, a wealth of literature has highlighted the problems with the inclusion thesis. In part C, of this paper I have summarised the main critiques of the inclusion thesis, as underwritten by a progressive, eurocentric history of international order. Whether we think of decolonisation as something that has already happened and “completed” or whether we consider coloniality as a useful lens to view the dynamics of international law largely depends on the history and theory of international law that we subscribe to. In this section, I highlight a second, more recent way in which “decolonisation” is spoken about in the literature. Building upon the insights of new histories and TWAIL engagements with international law, in recent years there have been numerous calls to “decolonise” international law.[108] This second reference to decolonisation departs quite sharply from positivist understandings of decolonisation as something that was completed by the 1980’s and recognises the importance of history and theory in shaping our understanding of what is decolonisation, its limits and possibilities. A eurocentric narrative of decolonisation treats the matter as something that was done and dusted at the time when alien-rule was outlawed in international law.  This second call to “decolonisation” speaks about it  in a more forward-looking way, as something that can be achieved in the future. More crucially, this second call to “decolonisation” also recognises the importance of knowledge in the long road to decolonisation.

In the 1970s, alongside with the full swing of independence movements, the important field of knowledge called postcolonial studies was born. [109] The main argument posited by Said was that power and knowledge go hand in hand.Closing </ref> missing for <ref> tag This idea was taken up in numerous ‘critical’ approaches to law, from the Critical legal studies (CLS) to Third World Approaches to International Law (TWAIL) and a more general turn to history in the discipline. Scholars working in the critical tradition recognise the value of critique for positive transformation. They recognise that much of the canon of knowledge is eurocentric and this limits the possibilities of what we think can be achieved by and through international law. They try to answer the same questions that were asked in the mid-20th century :   can international law be deployed in a way to enact more just economic, social and political relations between the different peoples and places of the world?


Most scholars will accept that the project of decolonisation is a long-term commitment. It requires us to think critically about the foundations of international law, the stories we tell about it, and even the way we teach it at universities. It is in this sense that more recently students of various disciplines across law, the social sciences and humanities have demanded a “decolonisation” of the curriculum of their studies.[110] This second call to decolonise speaks to the decolonisation of international law:  its doctrines, theories and knowledge produced about these. It takes seriously the problem of power and knowledge in shaping our understandings of what is possible through international law. In the past two decades, scholars have turned to the history and theory of international law. And one of the major points of interest for this scholarship have been to question why international law continues to have a fraught relationship with the global south. Nearly concurrently, there is also a debate about the emancipatory potential of international law. Time and again, scholars have shown how the international order is dominated by Great Powers and their interests. Moreover, extensive volumes of research have shown that as a discipline, international law (and international relations)  at least partially, were born from the need to manage Europe’s relations with the rest of the world.[111] Moreover, as I have shown in the above discussion, colonial power did not simply disappear from history after the decolonisation era of the 1940s-1970s. It is more appropriate to say that it transformed and continues to shape controversies across the discipline. What then can we say about decolonisation in international law? Pitts has suggested that international law asserts its universality via rhetoric rather than showing it in practice.[112] Given international law’s constant alignment with power interests some have asked whether it is even worth trying to salvage at this point?[113] Others suggest, that scholarship about international law needs to evolve into more radical, materialist critique.[114] Can these imperial disciplines, be decolonised? This itself is a huge debate, and certainly will not be resolved in the pages of this essay.


They do not provide any concrete answers, but call upon us to observe greater reflexivity in our knowledge production processes. Moreover, Pahuja has also argued that the promise of universality in international law is what makes it so powerful.[115] Since the decolonisation era, different actors from the global south have seized upon this promise in their efforts to enact change. To answer the question of whether it even makes sense to talk about the “decolonisation” of international law, it must be admitted there are no clear answers to give. Perhaps it is misguided to try and fix an answer to this point here and now:  it will rather, be the task of historians of international legal thought to conclude based on future developments. At the same time, we can talk about the limits and possibilities of decolonisation

By now it should be clear that when scholars, courts and international organisations invoke the term “decolonisation” they are not always talking about the same thing.  In the above discussion I have discussed Bull and Watson’s Expansion of International Society as underwriting most conventional understandings of decolonisation in international law. This text, written nearly forty years ago provided the first major attempt at theorising the dissolution of European territorial empires,  and along with it, a rejection of an explicitly racialised system of global order. Since the 1970’s, a rich discussion has unfolded at the intersections of legal and political theory about the limitations of the ‘inclusion thesis’. The main point worth stressing is that the inclusion thesis posits a strong discontinuity between the old world of imperialism and the new world of the Westphalian state system. It posits the acquisition of statehood and sovereignty as beings the marking the final end of colonialism.  While in no way attempting to undermine the importance of the statehood of non-western territories, my purpose has been to highlight the more concrete problems of inequality that continue to mar international affairs. Building upon the insights of critical scholarship over the last three decades, a new usage of the term ‘decolonisation’ has today emerged in international law. In this regard, the call to “decolonise” international law, speaks to numerous activist and scholarly attempts to think beyond the state-centric inclusion theory as simply marking the end of colonisation and demands of us to reflexively approach concrete methods, legal, political and institutional arrangements which reproduce relations of inequality. This second understanding of “decolonisation” compels us to move beyond positivistic understandings of the social world and to engage complexity, and power in its many guises.

Further Readings edit

  • Adom Getachew, Worldmaking After Empire: The Rise and Fall of Self-Determination, (New Jersey:  Princeton University Press, 2019)
  • Siba N’ Zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans, Race and Self-Determination in International Law,  (Minneapolis:  University of Minnesota Press, 1996)
  • Antony Anghie, 2006; 2005; 2016
  • Sundhya Pahuja,  Decolonising International Law:  Development, Economic Growth and the Politics of Universality, (Cambridge: Cambridge University Press, 2011)
  • Adam Watson and Hedley Bull (eds.) The Expansion of International Society, (Oxford:  Clarendon Press, 1984)
  • Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds.) Bandung, Global History and International Law:  Critical Pasts and Pending Futures, (Cambridge: Cambridge University Press, 2017)

Conclusion edit

  • Summary I
  • Summary II

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
  2. A. Anghie, Imperialism, Sovereignty and the Making of International Law, (Cambridge: CUP, 2005), p. 3
  3. S. N. Grovogui, Sovereigns, Quasi Sovereigns, and Africans, Race and Self-Determination in International Law,  (Minneapolis:   University of Minnesota Press, 1996), p. 1
  4. Take for example, the constitution of the UN Security Council. For a discussion see, Anghie, Imperialism and International Law,
  5. A. Watson and H. Bull (eds.) The Expansion of International Society, (Oxford:  Clarendon Press, 1984); See also A. Watson, ‘Hedley Bull, State Systems and International Societies’, Review of International Studies, 13 (1987): 147-153
  6. For a detailed discussion see G.K. Bhambra, ‘The State’ in O. Rutazibwa and R. Shilliam (eds.) Routledge Handbook of Postcolonial Politics, (Abingdon: Routledge, 2018).
  7. A. Osiander, ‘Sovereignty, International Relations and the Westphalian Myth’, International Organisation, 55, no. 2 (2001): 251-287; B. de Carvalho, H. Leira and J.M. Hobson, ‘The Big Bangs of IR: The Myths Your Teachers Still Tell You About 1648 and 1919’, Millennium: Journal of International Studies, 39, no. 3 (2011): 735-758; See for example A. Getachew, Worldmaking After Empire: The Rise and Fall of Self-Determination, (New Jersey: Princeton University Press, 2019) p. 15; L. Eslava, M. Fakhri and V. Nesiah, ‘The Spirit of Bandung’ in L. Eslava, M. Fakhri and V. Nesiah (eds.) Bandung, Global History and International Law: Critical Pasts and Pending Futures, (Cambridge: Cambridge University Press, 2017), p. 16.
  8. Anghie, Imperialism and Making of International Law, p. 52; N. Tzouvala, Capitalism as Civilisation: A History of International Law, (Cambridge: CUP, 2020), chapters 1 and 2.
  9. Grovogui, Sovereigns, Quasi Sovereigns and Africans, p. 51-53.
  10. Ibid. p. 53
  11. The classical exposition of this argument is Anghie, Imperialism and International Law.
  12. Article 22, League of Nations Covenant, 1921,  The Avalon Project, Documents in Law, History and Diplomacy, Available at: <https://avalon.law.yale.edu/20th_century/leagcov.asp> (last accessed, 1 July 2022).
  13. Ibid.
  14. Getachew, Worldmaking After Empire, p. 54.
  15. E. Manela, The Wilsonian Moment:  Self-Determination and the International Origins of Anti-Colonial Nationalism, (Oxford:  OUP, 2007).
  16. Ibid. p. 7; In the Wilsonian view, the non-European world was considered unfit for self-rule and thus treated as mandates of the League of Nations. See, U. Özsu, Formalizing Displacement: International Law and Population Transfers, (Oxford: Oxford University Press, 2014).
  17. The new world states, America, Canada etc all were fashioned as extensions of European civilisation, and were thus racial states.
  18. J. Crawford, The Creation of States in International Law, Oxford Scholarship Online, January 2010, 106.
  19. See M. N. Shaw, International Law, 7th Edition, (Cambridge:  CUP, 2014), p. 150 and more generally for statehood and recognition in international law, see chapters 5 and 9.
  20. Montevideo Convention on the Rights and Duties of States 1933, Article 1
  21. Bull, Emergence of International Society, p. 121-2.
  22. For a discussion of this point see, Shaw, International Law, p. 323-325.
  23. H. Bull, ‘The Emergence of a Universal International Society’, in Watson and Bull (eds.) The Expansion of International Society, p. 121-22.
  24. C. Schmitt, The Nomos of the Earth in the International Law of Jus Publicum Europaeum, (New York:  Telos Press, 2003) p. 140.
  25. Manela, The Wilsonian Movement, p. 10.
  26. B. Coggins, Power Politics and State Formation in the Twentieth Century:  The Dynamics of Recognition, (Cambridge:  CUP 2014),  p. 5.
  27. Watson and Bull, The Expansion of International Society.
  28. More on this in the next section.
  29. Bull, Emergence of International Society, p. 120-1.
  30. Resolution 1514, UN General Assembly.
  31. Ibid.
  32. Getachew, Worldmaking After Empire, p. 14.
  33. Ibid.'
  34. Ibid. chapter 3.
  35. For a discussion, see Shaw, International Law,
  36. Ibid. p. 255.
  37. Ibid.
  38. Grovogui, Sovereigns, Quasi Sovereigns and Africans, p. 1.
  39. See note 41 above.
  40. Getachew, Worldmaking After Empire, p. 11; J. Hobson, ‘The R-Word and the E-Word Definitional Controversies:  A Dialogue with My Five Interlocutors’, Postcolonial Studies, 19, no. 2  (2016): 210-216;
  41. S. Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality, (Cambridge:  Cambridge University Press, 2011), p. 6; N. Samour, ‘Is There a Role for Islamic International Law in the History of International Law’, European Journal of International Law, 25, no. 1 (2014): 313-319; See also J.T. Gathii’s distinction between a contributionist or critical approach when assessing the role of non-western societies in making international law, ‘Africa and the Radical Origins of the Right to Development’, TWAIL Review, 1 (2020): 28-50, p.  28.
  42. G. Hernández, ‘The Responsibility of the International Legal Academic:  Situating the Grammarian Within the ‘Invisible College’, in J. d’Aspermont and T. Gazzini (eds.) International Law as a Profession, (Cambridge: CUP, 2017).
  43. A. Loomba, Colonialism/Postcolonialism, 2nd ed (London:  Routledge, 2005), p. 16.
  44. Getachew, Worldmaking After Empire, p. 11.
  45. Grovogui, Sovereigns, Quasi Sovereigns and Africans, p. 1.
  46. See for instance, Anghie, Imperialism, Sovereignty and International Law, p. 313; Tzouvala, Capitalism as Civilisation, p. 219; and Pahuja, Decolonising International Law, p. 255.
  47. Pahuja, Decolonising International Law, p. 6.
  48. G.K. Bhambra, ‘The State:  Postcolonial Histories of the Concept’, in O. Rutazibwa and R. Shilliam (eds.) Routledge Handbook of Postcolonial Politics, (Abingdon:  Routledge, 2018).
  49. A. Césaire, Discourse on Colonialism, (New York:  Monthly Review Press, 1972).
  50. K. Nkrumah,  Neo-colonialism:  The Last Stage of Imperialism (Bedford: Panaf Books Limited, 1966), p. ix.
  51. K. Nkrumah, quoted in Getachew, Worldmaking After Empire, p. 17.
  52. D. Armitage, The Declaration of Independence:  A Global History, (Harvard University Press, 2008); Getachew, Worldmaking After Empire.
  53. T. Barkawi and M. Laffey, ‘Retrieving the Imperial:  Empire and International Relations’, Millennium:  Journal of International Studies, 31, no. 2 (2002): 109-127.
  54. Getachew, Worldmaking After Empire, p. 17-18.
  55. Ibid.
  56. Ibid. p. 19.
  57. List of Cases (to be completed)
  58. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion).
  59. K. Waltz, Man, The State and War:  A Theoretical Analysis, (New York: Columbia University Press, 2001).
  60. See for example, E. Henderson, ‘Hidden in Plain Sight:  Racism in International Relations Theory’, Cambridge Review of International Affairs, 26, no. 1 (2013): 71-92.
  61. B. Rajagopal, ‘Counter-Hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy’, Third World Quarterly, 27, no. 5 (2006): 767-783, p. 769.
  62. O. Yasuaki, ‘When Was the Law of International Society Born —An Inquiry of the History of International Law From an Intercivilizational Perspective’, Journal of the History of International Law, 2, (2000): 1-66, p. 27.
  63. Getachew, Worldmaking After Empire,  p. 15.
  64. Anghie, Imperialism and International Law.
  65. A. B. Lorca, ‘Sovereignty Beyond the West:  The End of Classical International Law’, Journal of the History of International Law, Journal of the History of International Law, 13(2011): 7-73,  p. 9.
  66. Getachew, p. 15; Hobson, The E Word and R Word, p. 212.
  67. J. M. Hobson, ‘The ‘R-Word’ and ‘E-Word’ Definition Controversies:  A Dialogue with my Five Interlocutors’,  Postcolonial Studies, 19, no. 2 (2016): 210-226, p. 212.
  68. A. Anghie, ‘Imperialism and International Legal Theory’ in A. Orford and F. Hoffman (eds.) The Oxford Handbook of the Theory of International Law, (Oxford:  OUP, 2016).
  69. Ibid.
  70. (incomplete footnotes)
  71. B. Rajagopal, International Law from Below, Development, Social Movements and Third World Resistance, (Cambridge:  CUP, 2003), chapter 9
  72. See D. Armitage, J. Pitts and C.H. Alexandrowicz, The Law of Nations in Global History, (Oxford: OUP, 2017)
  73. Ibid.
  74. A. B. Lorca, Mestizo International Law:  A Global Intellectual History, 1842-1933, (Cambridge:  CUP, 2015)
  75. Samour, Islamic International Law in History, p. 313-319.
  76. Founded in 1975 as an informal meeting point for the worlds most industrialised nations.
  77. Getachew, Worldmaking After Empire, p. 31.
  78. For a sophisticated and more detailed reading of this issue consult, Pahuja, Decolonising International Law, chapter 3.
  79. See for example, the G77 proposal at the ; See also the Declaration over PSNR.
  80. L. Eslava, M. Fakhri and V. Nesiah, ‘The Spirit of Bandung’ in L. Eslava, M. Fakhri and V. Nesiah (eds.) Bandung, Global History and International Law:  Critical Pasts and Pending Futures, (Cambridge:  Cambridge University Press, 2017), p. 4.
  81. P. Lyon, ‘The Emergence of the Third World’ in A. Watson (eds.) Expansion of International Society,  p. 229.
  82. Ibid.
  83. L. Eslava, M. Fakhri and V. Nesiah, ‘The Spirit of Bandung’ in L. Eslava, M. Fakhri and V. Nesiah (eds.) Bandung, Global History and International Law:  Critical Pasts and Pending Futures, (Cambridge: Cambridge University Press, 2017) p. 21
  84. Ibid.
  85. Ibid.
  86. United Nations General Assembly Resolution 41/128
  87. B. Rajagopal, ‘Counter-Hegemonic International Law: Rethinking Human Rights and Development as aThird World Strategy’ Third World Quarterly, 27, no. 6 (2006): 767-783, p. 776
  88. For an excellent summary of these issues see, P. Alston (incomplete).
  89. Pahuja, Decolonising International Law, chapter 4; For a further critique of good governance see Anghie, Imperialism and International law, chapter 5.
  90. Ibid. chapter 5.
  91. A. Hurrell, On Global Order:  Power, Values and the Constitution of International Society, (Oxford:  OUP, 2007), p. 208-9.
  92. Bull, Emergence of International Society, p. 121-22.
  93. G. Simpson, Great Powers and Outlaw States:  Unequal Sovereigns in the International Legal Order, (Cambridge: CUP 2004), p. 62.
  94. U. Baxi, ‘What May the ‘Third World’ Expect From International Law’, Third World Quarterly, 27, no. 5 (2006): 713-725.
  95. N. Lees, ‘The Brandt Line After Forty Years:  The More North-South Relations Change, The More They State the Same?’, Review of International Studies, 47, no. 1 (2020): 85-106.
  96. Pahuja, Decolonising International Law; Baxi, What May the ‘third world’ Expect, p. 720.
  97. J. Dehm, ‘Carbon Colonialism or Climate Justice? Interrogating the International Climate Regime From a TWAIL Perspective’, Windsor Yearbook of Access to Justice, 33, no. 3 (2016).
  98. Rajagopal, Counter-Hegemonic International Law.
  99. Z. Buzas, ‘Racism and Anti-Racism in the Liberal International Order’, International Organisation, 75, no. 2 (2021): 440-463.
  100. D. Kennedy, S. Moyn, (incomplete footnotes).
  101. Baxi, What May the ‘Third World’ Expect, p. 720.
  102. D. Kennedy, A World of Struggle:  How Power, Law and Expertise Shape Global Political Economy,  (New Jersey:  Princeton University Press, 2016)
  103. S. Moyn, ‘Knowledge and Politics in International Law’, Harvard Law Review, 129 (2016): 2164-2189,  p. 2166.
  104. Eslava, et.al, The Spirit of Bandung, p. 29.
  105. Ibid. p. 16.
  106. Ibid. p. 14.
  107. (incomplete footnotes).
  108. Pahuja, Decolonising International Law; M Al-Attar and S Abdelkarim, ‘Decolonising the Curriculum in International Law: Entrapments in Praxis and Critical Thought’, Law and Critique (2021); M. B-Kasthala and C. S-Patel, ‘Against Coloniality in the International Law Curriculum:  Examining Coloniality’, The Law Teacher (2022).
  109. Edward Said, Orientalism.
  110. M Al-Attar and S Abdelkarim, ‘Decolonising the Curriculum in International Law: Entrapments in Praxis and Critical Thought’, Law and Critique (2021); M. B-Kasthala and C. S-Patel, ‘Against Coloniality in the International Law Curriculum:  Examining Coloniality’, The Law Teacher (2022).
  111. Anghie, Imperialism and International Law; See also, R. Vitalis, White World Order, Black Power Politics:  The Birth of American International Relations, (Ithaca: Cornell University Press, 2015).
  112. Pitts, Critical History of International Law,  p. 289.
  113. B Golder, ‘Beyond Redemption? Problematising the Critique of Human Rights in Contemporary International Legal Thought’, London Review of International Law, 2, no.1 (2014): 77-114.
  114. J.D. Haskell, ‘TRAIL-ing TWAIL:  Arguments and Blind Spots in Third World Approaches to International Law’, Canadian Journal of Law and Jurisprudence, 27, no. 2 (2014): 1-32.
  115. Pahuja, Decolonising International Law, p. 256.



Author: Jane Doe

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Author: Jane Doe

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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. International law and the prevention of violence edit

A primary purpose of the United Nations collective security system is to “maintain international peace and security”, saving “succeeding generations from the scourge of war”.[1] Concretely, a fundamental rule set out in Article 2(4) of the United Nations Charter prohibits the threat or use of force by States.[2] This is supported by the requirement that states settle their international disputes by peaceful means.[3] Key instruments invoke peace, and respect and friendliness of states towards their sovereign equals.[4]

Significant parts of international law are, therefore, concerned with preventing  – or at the very least, restraining – organised armed violence, in effect, preserving and safeguarding the peace that does exist.[5] More broadly, many parts of international law seek to continually improve the global situation, protecting individuals from forms of 'violence' in its broadest meaning (see also advanced box below): 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. Many students become interested in international law or embark on related professional work precisely because international law 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 vital restraint on the worst that humanity has to offer.

Although aspirations for a peaceful and just world have not (yet) been achieved (whether through international law or through any other project), fundamental rules of international law, such as the prohibition on the use of aggressive force or the murder of detainees, are more often respected than not, and much violence is due to violations of international law. In this sense, international law could be considered successful in its purpose at least to some extent, even if the enforcement of international law also presents clear challenges.[6]

Yet, because the international legal system aims to maintain international peace and security but this has not yet been achieved, a conundrum arises that complicates matters; namely, how to best protect people from violence in the meantime and whether violence might be considered necessary precisely to ensure that protection. In the face of this conundrum, the international legal framework has not prohibited all violence aspirationally but has taken a more realist position, which authorises and regulates force.

Advanced: The notion of violence

The term ‘violence’ is not defined in international law and is used here in a general way.[7] 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 and psychological 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.[8]

Of note, certain non-military threats are also considered threats to international peace and security, which might potentially require an armed response.[9] Moreover, several other global issues are talked about in this way, such as combating the crisis of the COVID-19 pandemic[10] or the ‘war on drugs’. Threats to the security of groups of people (as opposed to State security) have also justified armed operations in response.[11]


B. International law's regulation of violence edit

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”.[12]

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”[13] and the UN Security Council may authorise forcible measures where a threat to international peace and security has been determined.[14] One example is Ukraine’s actions to 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] [Max: please add footnote]


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.[15] 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”,[16] 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.”[17]

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.

C. The Paradox of Violence as Problem and Solution edit

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.[18] This is supported by the requirement that states settle their international disputes by peaceful means.[19] 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”.[20] In other words, a preventive approach in order to safeguard peace.[21] 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[22] 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”[23] and Alexander an optimism that “was soon tinged with a deep unease”.[24] 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.[25] 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.[26] 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”[27] and the UN Security Council may authorise forcible measures where a threat to international peace and security has been determined.[28] 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”,[29] 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.”[30]

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.[31] 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.[32] 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.[33] 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.[34] 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.[35] 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.[36] 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”.[37] 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.[38] 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’?”[39]

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.[40] 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? edit

[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 edit

  • 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).

Conclusion edit

  • Summary I
  • Summary II

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. United Nations Charter, preamble.
  2. United Nations Charter, art 2(4).
  3. United Nations Charter, art 2(3). See also art 1(1).
  4. 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).
  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.
  6. [Internal reference to ‘Enforcement’.]
  7. The term ‘violence’ does appear in some international instruments as well as in certain instruments and statements of international bodies, most commonly in relation to particular acts of violence committed against individuals, including in relation to violence against women or children, and sexual and gender-based violence, as well as regarding incitement to violence. This includes the Geneva Conventions 1949 (see, for example, Common Article 3, Arts 12 and 18 of GC1, Art 12 of GCII, Arts 13 and 93 of GCIII, Art 27 of GCIV, Arts 17, 51 and 75 of API, Arts 1(2), 4(2)(a) and 13(2) of AP II); Rome Statute of the International Criminal Court (see, for example, Arts. 7(1)(g), 8(2)(d), 8(2)(f), 36(8)(b), 42(9), 54(1)(b)); Convention on the Rights of the Child (see, for example, Art. 19(1)). Otherwise, acts of violence are often described more narrowly through specific offences such as murder or killing, extermination, torture, enforced disappearance, bodily or mental harm, or, through terms that have been defined or have developed specific meanings such as ‘attack’, ‘armed attack’, ‘use of force’ and ‘aggression’. See API, Art. 49; UN Charter, Arts. 2(4), 51; General Assembly resolution 3314 (XXIX), Annex: Definition of Aggression, 14 December 1974.
  8. See, for example, regarding structural violence, Johan Galtung, ‘Violence, Peace and Peace Research’ (1969) 6(3) Journal of Peace Research 167 and discussing different forms and definitions of violence, 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, at 207-212.
  9. 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 at 121-23.
  10. Eliana Cusato ‘Beyond War Narratives: Laying Bare the Structural Violence of the Pandemic’ in Makane Moïse Mbengue and Jean D'Aspremont (eds) Crisis Narratives in International Law (Brill, 2022) 109-121.
  11. 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 at 119.}}
  12. 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.
  13. United Nations Charter, preamble.
  14. Marc Weller, ‘Use of Force’ in Oxford Handbook of International Organisations, 622 at 623.
  15. United Nations Charter, preamble.
  16. At least, “until the Security Council has taken measures necessary to maintain international peace and security”. See United Nations Charter, art 51.
  17. United Nations Charter, art 42. See also art 53 regarding regional organisations.
  18. United Nations Charter, art 2(4).
  19. United Nations Charter, art 2(3). See also art 1(1).
  20. 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 85.
  21. Ibid, 105.
  22. See, for instance, Martti Koskeniemmi, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’ in in D’Aspremont et al (eds) International Law as a Profession (Cambridge University Press, 2017, 38-66.
  23. Martti Koskeniemmi, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’ in in D’Aspremont et al (eds) International Law as a Profession (Cambridge University Press, 2017, 38-66 at 48.
  24. Amanda Alexander, ‘The Ethics of Violence: Recent Literature on the Creation of the Contemporary Regime of Law and War’ (2021) Journal of Genocide Research 1-17, at 2.
  25. Dianne Otto, ‘rethinking “peace” in international law and politics from a queer feminist perspective’ (2020) 126 Feminist Review 19-38, at 26.
  26. Ibid; Marc Weller, ‘Use of Force’ in Oxford Handbook of International Organisations, 622 at 623. See also on negative and positive formulations of peace, 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, at 212.
  27. At least, “until the Security Council has taken measures necessary to maintain international peace and security”. See United Nations Charter, art 51.
  28. United Nations Charter, art 42. See also art 53 regarding regional organisations.
  29. United Nations Charter, preamble.
  30. Marc Weller, ‘Use of Force’ in Oxford Handbook of International Organisations, 622 at 623.
  31. 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, at 209; Darryl Li, ‘A Universal Enemy?: “Foreign Fighters” and Legal Regimes of Exclusion and Exemption under the “Global War on Terror”’ (2010) 41 Columbia Human Rights Law Review 355, at 373.
  32. See, for instance, Marc Weller, ‘Use of Force’ in Oxford Handbook of International Organisations, 622 at 625 regarding earlier debates about criteria for ‘just wars’.
  33. Art 24 of the UN Charter gives the Security Council the primary responsibility for the maintenance of international peace and security, although Art 42 allows the Security Council to take actions necessary to maintain or restore international peace and security.
  34. Marc Weller, ‘Use of Force’ in Oxford Handbook of International Organisations, 622 at 629.
  35. David Kennedy, ‘Lawfare and Warfare’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge University Press, 2012) 158, at 158.
  36. Ibid at 642-43.
  37. Vanja Hamzić, ‘International law as violence: Competing absences of the other’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complication, Risks (Taylor & Francis, 2017) 77, at 77.
  38. Martin Shaw, ‘Risk-Transfer Militarism, Small Massacres and the Historic Legitimacy of War’ (2002) 16(3) Intentional Relations 343, at 343: “War, it seems, is not the prerogative of international criminals, but the first resort of the righteous.” See also Helen Dexter, ‘The “New War” on Terror, Cosmopolitanism and the ‘Just War’ Revival (2008) 43(1) Government and Opposition 55.
  39. Iain Scobbie, ‘War’ in Jean d’Aspremont and Sahib Singh (eds) Concepts for International Law (Edward Elgar, 2019) 900, at 912 (citations omitted).
  40. Dianne Otto, ‘rethinking “peace” in international law and politics from a queer feminist perspective’ (2020) 126 Feminist Review 19-38, at 21.



Author: Sué González Hauck

Required knowledge: Link

Learning objectives: Understanding XY.


A. Introduction edit

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.[1]

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'.[2]


B. Consent, Consensus, and Anarchy edit

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.[3] 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 edit

Stephen Neff distinguishes three kinds of consent: ‘outcome consent’, ‘rule consent’, and ‘regime consent’.[4] 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. [5] 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 edit

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.[6]

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.[7]

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:[8]

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 edit

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.[9] 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 edit

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 edit

  • Source I
  • Source II

Conclusion edit

  • Summary I
  • Summary II

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. PCIJ Lotus (France v Turkey) Rep Series A No 10, 18.
  2. Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Reissue with a new Epilogue, CUP 2006) 65.
  3. Hedley Bull, The Anarchical Society (3rd edn Palgrave Macmillan 2002) 44; Kenneth Waltz, Theory of International Politics (1979) 88, 102; Helen Milner, 'The Assumption of Anarchy in International Relations Theory: A Critique' (1991) 17 (1) Review of International Studies 67-85, 70-74.
  4. Stephen C. Neff, ‘Consent’ in Concepts for International Law, at 128-129
  5. Stephen C. Neff, ‘Consent’ in Concepts for International Law, at 130-131.
  6. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005) 34; James Anaya, Indigenous Peoples in International Law (2000) 19 et seq.
  7. | Mieke van der Linden, The Acquisition of Africa (1870-1914): The Nature of International Law (Brill Nijhoff 2017); James Anaya, Indigenous Peoples in International Law (2000) 17.
  8. UN Office of the High Commissioner for Human Rights, 'Free, Prior and Informed Consent', September 2013.
  9. Cf. Prosper Weil, Towards Relative Normativity in International Law?, 77 AJIL 413 (1983); Karen Knop, Introduction to the Symposium on Prosper Weil, "Towards Relative Normativity in International Law?" 114 AJIL Unbound 67 (2020).



Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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Further Readings edit

  • Source I
  • Source II

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  • Summary I
  • Summary II

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Part III - Specialized Fields

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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.

A. Introduction edit

Cases are not only a "subsidiary means for the determination of rules of law" in international law according to article 38(1)(d) ICJ[1] Statute[2], 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,[3] 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. In doing so, this chapter aims to guide students through exams, term papers and moot courts in which case law analysis is key.

B. Relevance of Cases in International Law edit

According to the traditional reading, cases[4] are one of the four main sources to determine rules of international law[5]. Both judges and scholars of international law deal extensively with prior domestic and international decisions in their publications. Finding and analyzing cases is therefore one of the main tasks of international lawyers.

I. Decisions of International Adjudicative Bodies edit

On a strict reading of Article 38(1)(d) of the ICJ Statute, judicial decisions are only subsidiary sources of international law.[6] 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,[7] no formal concept of precedent exists in international law.[8] 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,[9] scholars use cases to adjust their approaches to the realities of international law, and commissions use cases as food for thought when codifying law[10]. This applies not only to judicial decisions but also to communications of commissions, committees, and other quasi-judicial bodies.[11]

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 the International Tribunal for the Law of the Sea (ITLOS).[12] 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 edit

Domestic court decisions are also covered by 38(1)(d) of the ICJ Statute.[13] 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[14] and to secure acceptance by states. By discussing domestic decisions, courts signal to states that their legal traditions are being taken seriously.[15] For this reason, a thorough research on domestic decisions should not only focus on decisions of the usual suspects, but should strive for representativeness.[16]

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.[17] 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).[18] 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",[19] 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 most 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 taught in international law departments around the world.[20] However, this prevalence of English-language decisions in citations is not inevitable, but the result of historical inequalities within the international system. Over the past 400 years, European states in particular have imposed their legal systems on countries on every continent of the world. Today, English is the working language in international institutions, and English-language publications are expected by international law scholars in many regions of the world.[21] In light of these colonial roots of the bias in favour of English-language decisions, 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.[22] 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, 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.

Advanced: Case Selection

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 may strive for so-called theoretically informed sampling. This requires a three-step approach: Firstly, students define their object of interest as precisely as possible (e.g., state practice regarding prosecuting institutionalized mass atrocities). Secondly, students search for states that faced similar problems in their history. Thirdly, students group the relevant states by 'legal families', geographic region, economic and political systems as well as their the position within international power structures. Lastly, students select a representative state from each possible combination for their analysis. The reasons for selection should be presented transparently.[23] While this process is more time-intensive than traditional methods, it will not only provide novel insights but also serves to counteract the exclusion of the majority of states from the process of creating and developing international law, thereby contributing to fulfilling international law's universalist potential.


C. Researching Cases in International Law edit

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 they 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 they 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 edit

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:

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 Databases edit

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 may 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:

To use these databases most effectively, students may 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 may 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[24] 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 may 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.[25] Students may repeat their research several times during the processing period using adjusted keywords to reflect their increased knowledge.

D. Using Cases in International Law edit

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 edit

After finding the relevant cases, students must understand these 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 (imaginary) 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., Third World Approaches to International Law[26]), 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 may 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 edit

Before reading the case for the first time, students may 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"[27] 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 only those passages that seem relevant to answering the task. For example, if students are only interested in the legal reasoning, they may bypass all the parts of the judgment describing the facts and the proceedings to focus on the legal reasoning. In a third step, students may 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.

Advanced: Highlighting Cases

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.[28]


In the final step of reading and annotating, students may consider rereading the case 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 edit

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.

Advanced: Writing a Case Brief

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).[29] 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 edit

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.[30] 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 edit

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 may be considered.

a) Distinguishing Cases edit

Before classifying a case as being for or against their reasoning, students may 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.[31]

b) Obiter Dicta edit

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[32] and defined obligations erga omnes for the first time in an obiter dictum in Barcelona Traction[33]. 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[34].[35]

c) Individual Opinions edit

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.[36]

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.[37] Concurring opinions often clarify or generalize the court's reasoning.[38] 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 individual opinions in Norwegian Loans and Interhandel against the legality of so-called self-judging reservations to the compulsory jurisdiction of the ICJ,[39] which later became accepted by the majority in Fisheries Jurisdiction (Spain v Canada)[40].

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.[41]

2. Approaching Cases Critically edit

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. Examples of critical engagement with cases include the 'feminist judgment movement',[42] 'trashing' in the sense of critical legal studies,[43] and 'Reading Back, Reading Black'[44]. In the following chapters, this textbook provides insights into how to employ interdisciplinary,[45] (post-)colonial,[46] feminist,[47] and Marxist[48] approaches to case law analyses.

E. Conclusion edit

Cases are one of the four main sources to determine rules of international law. Despite this particular relevance, the ability of students to locate, understand, and apply cases in exams is often assumed. Many textbooks of international law do not teach case analysis skills, but only knowledge of the law. This chapter has attempted to provide students with an introduction to case analyses. (Un-)fortunately, it is up to these students, along with their teachers and practitioners of international law, to ensure that case analyses in the future no longer only consider decisions from colonising legal systems. This will require a challenging but also rewarding engagement with foreign legal systems, possibly including the learning of new languages (for this, Anglophone readers may feel particularly encouraged), and the critical questioning of traditional citation practices and case analysis techniques. While this process is time-intensive, it will not only promise novel insights but also serves to counteract the exclusion of the majority of states from the process of creating and developing international law, thereby contributing to fulfilling international law's universalist potential.

Conclusion edit

  • 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.

Further Readings edit

  • 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)

Further Resources edit

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. On the ICJ, see Bolyová/ Sabján, § 12, in this textbook.
  2. Statute of the International Court of Justice (adopted 17 December 1963, entered into force 31 August 1965) 993 UNTS 33.
  3. James Crawford, Brownlie’s Principles of Public International Law (Eighth edition, Oxford University Press 2012) 37–41; Malcolm N Shaw, International Law (Eighth edition, Cambridge University Press 2017) 81–83; Gleider I Hernández, International Law (Oxford University Press 2019) 32–53, 305–316; Jan Klabbers, International Law (3rd ed, Cambridge university press 2021) 40–42, 155–181.
  4. On judicial decisions as sources of international law, see Lima/Kunz/Castelar Campos, § 6.4, in this textbook.
  5. On sources of international law, see Eggett, § 6, and the following chapters on specific sources of international law in this textbook.
  6. Article 38(1)(d) provides that "The Court […] shall apply: subject to the provisions of Article 59, judicial decisions […], as subsidiary means for the determination of rules of law.”; see also Cameroon v Nigeria: Equatorial Guinea intervening) [Preliminary Objections] 275 (ICJ) [28].
  7. Article 59 of the ICJ Statute, Article 46(1) ECHR, Articles 68(1) ACHR, Article 33(2) Statute of the International Tribunal for the Law of the Sea
  8. Crawford (n 1) 37–39; Shaw (n 1) 81–82.
  9. The ICJ often argues with well established case law. See United States Diplomatic and Consular Staff in Tehran (United States v Iran) [1980] ICJ Rep 3 [33]: ‘Nevertheless, in accordance with its settled jurisprudence, the Court, in applying Article 53 of its Statute, must first take up, proprio motu, any preliminary question, whether of admissibility or of jurisdiction, that appears from the information before it to arise in the case and the decision of which might constitute a bar to any further examination of the merits of the Applicant’s case.
  10. The ILC heavily relied on the ICJ’s decision in Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7 to codify the state of necessity in its Draft Articles on Responsibility of States for Internationally Wrongful Acts; see ILC, ‘ARSIWA Commentaries’ (2001) Article 25, paras 11, 15, 16, 20.
  11. The ICJ even considered the Human Rights Committes’ interpretation of the ICCP in its Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Kongo) (Preliminary Objections) [2007] ICJ Rep 582 [66]: ‘Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. The point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.
  12. On the law of the sea in general, see Paige/Dela Cruz, § 15, in this textbook.
  13. Mads Andenas and Johann Ruben Leiss, ‘The Systemic Relevance of “Judicial Decisions” in Article 38 of the ICJ Statute’ (2017) 77 ZaöRV 907, 951–952, 958, 966.
  14. Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) [2012] ICJ Rep 99 [64, 68, 71–75, 76, 78, 83, 85, 90, 96, 118]; see also International Law Commission, ‘Identification of Customary International Law’ (2016) UNGA A/CN.4/691.
  15. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3 [56–58].
  16. Andenas and Leiss (n 6) 965.
  17. Katerina Linos, ‘How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics’ (2015) 109 American Journal of International Law 475, 476; Erik Voeten, ‘Borrowing and Nonborrowing among International Courts’ (2010) 39 The Journal of Legal Studies 547, 558–568; Anthea Roberts, Is International Law International?, vol 1 (Oxford University Press 2017) 167–172
  18. Jurisdictional Immunities (n 8) paras 68, 71–75, 76, 78, 83, 85, 90, 96, 118.
  19. White & Case, Jessup Guide: Researching International Law, 6, available at: https://events.whitecase.com/jessup/pdfs/Section2_JessupGuide_IntLaw.pdf (accessed at 16/01/2022).
  20. Linos (n 13) 476.
  21. Ammann O, ‘Language Bias in International Legal Scholarship: Symptoms, Explanations, Implications and Remedies’ (2022) 33 European Journal of International Law 821
  22. Andenas and Leiss (n 7) 965.
  23. Linos (n 13) 479–480.
  24. E.g., EJIL:Talk!, Just Security, Lawfare, Legal Form, Opinio Juris, Verfassungsblog, Voelkerrechtsblog
  25. See B. Relevance of Cases in International Law.
  26. On Third World Approaches to International Law, see Agarwalla/González Hauck/Venthan Ananthavinayagan, § 4.2, in this textbook
  27. [ https://www.bbc.co.uk/teach/skillswise/skimming-and-scanning/zd39f4j | BBC Teach Skillswise, Reading: Skimming and Scanning]
  28. This section is based on ideas from Michael Makdisi and John Makdisi, ‘How To Write a Case Brief for Law School’, Introduction to the Study of Law: Cases and Materials (3rd ed, LexisNexis Matthew Bender 2009).
  29. This section is based on ideas from Robin Creyke and others, Laying Down the Law (Tenth edition, 2018) 139–153; Makdisi and Makdisi (n 13).
  30. B. Relevance of Cases in International Law.
  31. Michael Y Liu and others, A Guide to the Philip C. Jessup International Law Moot Court Competition (Chinese Initiative on International Criminal Justice 2014) 16; David M Scott and Ukri Soirila, ‘The Politics of the Moot Court’ [2021] European Journal of International Law 1089–1092.
  32. North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (Judgement) [1969] ICJ Rep 3 [77]: ‘The essential point in this connection-and it seems necessary to stress it-is that even if these instances of action by non-parties to the Convention were much more nunierous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris;-for, in order to achieve this result, two conditions must be ful- filled. Not only must the acts concerned amount to a settled practice, but they must also be sucli, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of Iaw requiring it. The need for such a belief, Le., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitua1 cliaracter of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, whicli are performed almost invariably, but which are motivated only by considcrations of courtesy, convenience or tradition, and not by any sense of legal duty.
  33. Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Preliminary Objections) [1964] ICJ Rep 6 [33]: ‘In particular, an essential distinction should be drawn between the obligations of a State towards the inter- national community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of al1 States. In view of the importance of the rights involved, al1 States can be held to have a legal interest in their protection; they are obligations erga omnes.
  34. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) [2007] ICJ Rep 659 [319].
  35. Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) [2007] ITLOS Rep 4 (ITLOS) [384].
  36. See Article 57 Statute of the ICJ, Article 45(2) ECHR, Article 14.3 DSU, Article 30 Statute of the ITLOS
  37. Rainer Hofmann, ‘Separate Opinion: International Court of Justice (ICJ)’ in Anne Peters (ed), Max Planck Encyclopedia of International Procedural Law (2018) 15 para 48.
  38. ICJ, ‘Comments of the International Court of Justice on the Report of the UN Joint Inspection Unit on “Publications of the International Court of Justice"’ (1986) UN Doc A/ 41/591/Add.l para 11.
  39. Judge Lauterpacht, Case of Certain Norwegian Loans (France v Norway) (Separate Opinion) [1957] ICJ Rep 34; Judge Lauterpacht, Interhandel (Switzerland v United States of America) (Dissenting Opinion) [1959] ICJ Rep 95.
  40. Fisheries Jurisdiction (Spain v Canada) [1998] ICJ Rep 432 [86].
  41. Hofmann (n 20) paras 43–44.
  42. Hodson L and Lavers T, Feminist Judgments in International Law (Hart 2019); Troy Lavers/Loveday Hodson, “Feminist Judgments in International Law”, Völkerrechtsblog, 24 April 2017 (accessed on 20 June 2023).
  43. Kelman, Mark G. “Trashing.” Stanford Law Review 36, no. 1/2 (1984): 293.
  44. Capers, I. Bennett (2006) "Reading Back, Reading Black," Hofstra Law Review: Vol. 35: Iss. 1, Article 2.
  45. On interdisciplinarity, see Steininger/Paige, § 3.2, in this textbook.
  46. On TWAIL, see Agarwalla/González Hauck/Venthan Ananthavinayagan, § 4.2, in this textbook.
  47. On feminist approaches to international law, see Kahl/Paige, § 4.3, in this textbook
  48. On Marxist to international law, see Bagchi, § 4.4, in this textbook


Authors: Silvia Steininger, Tamsin Phillipa Paige

Required knowledge: none

Learning objectives: This chapter introduces law students to the basics of interdisciplinarity in public international law. Students will learn about the main strands of interdisciplinary scholarship and the most prominent methodological tools available. They will be able to fully grasp the benefits and challenges of adopting an interdisciplinary perspective on international law and receive helpful practical guidance in creating their own interdisciplinary legal research projects.

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 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.

A. Basics for Interdisciplinarity in Public International Law edit

The call for 'interdisciplinarity' has become a staple in international legal research. It 'can be seen everywhere, ranging from funding calls, research agendas, grant applications, conference themes and internet blogs to rhetorical manoeuvres.'[1] Yet, the more interdisciplinarity gained in popularity, the fuzzier its meaning actually became. To move between disciplines comes with benefits and challenges. In this section, we want to sketch out the basics for what interdisciplinarity means, why it is useful, and how to start an interdisciplinary research project.

I. What is Interdisciplinarity? edit

In general terms, interdisciplinarity denotes research projects that aim at synthesizing and harmonizing knowledge and methods between two or more disciplines into a coordinated and coherent whole.[2] 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 communities and their writings. 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 attempts to create a unitary common framework among two or more disciplines, to find common research questions, harmonize definitions, and identify explanations that 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)[3] dilutes disciplinary boundaries, threatens the idea of a specialized profession and challenges central understandings such as legal autonomy.[4] In fact, disciplines are not academic silos but overlap and interact with each other constantly. International law 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.'[5] Interdisciplinary approaches might reproduce, disguise, or even strengthen existing power relations. Adopting an interdisciplinary research agenda and methodological toolbox further requires additional opportunity costs, for instance to get access to methodological training or resources such as specific programs, which might exacerbates structural inequalities in academia. 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.[6]

II. Why do interdisciplinary research? edit

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, who 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 usually take the perspective of the outsider, who observes the processes, structures, and norms of international law in action. Interdisciplinary research allows 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.[7]

III. How to do interdisciplinary research? edit

Naturally, there are countless options to analyze international law from an 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, you need 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, who 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 itself.

Thirdly, it is important that the respective researcher openly and transparently justifies the respective 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 research units, which methodologies are going to be applied, how is the data being gathered, and what are the limitations of this particular method. In general, the various empirical methods can be grouped in either qualitative, focusing on the interpretation of words and meanings of texts, or quantitative, focusing on the interpretation of numbers and statistics. Advanced scholars sometimes also apply so-called 'mixed methods"'which can include a combination of several qualitative and quantitative methods. At this stage, 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.

Finally, 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. Hypotheses can be confirmed or refuted. 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 Scholarship in International Law edit

Throughout the last decades, particular types of interdisciplinary scholarship have emerged in international legal research. This section provides a non-exhaustive overview of main strands and thinkers as a first gateway to glean inspiration for further engagement.

I. International Law and History edit

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 doctrinal legal research necessarily requires placing the principles espoused by legal instruments or relevant international court decisions in the context in which 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. Prime examples of this type of scholarship can be found in the work of Arnulf Becker Lorca,[8] James Crawford,[9] Martti Koskenniemi,[10] and Anne Orford.[11] 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.[12] Rather, scholars engaging historical enquiries of international law often aim to disrupt accepted narratives that established alleged 'legal truths'.[13] The historigraphical turn in international law has also put significant emphasis on researching the history of international law in non-Western regions and peripheries. This includes not only a renewed emphasis on questions of imperialism[14] and colonialism,[15] but also on regional perspectives, for instance on international law and the history of ideas in Latin America,[16] Africa,[17] and Russia,[18] as well inter-civilizational perspectives.[19]

II. International Law and Sociology edit

The primary goal 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.'[20] 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 can be explained on methodological grounds. Sociology is a methods- and theory-based discipline which means that there is a battery of defined available methods, new methods need to be sufficiently tested, justified, and articulated to be considered valid included and social theory is directly informed by empirical observation of the world. Political science and international relations, however, are subject matter based disciplines and thus have more scope as they adopt the different methodologies from other disciplines such as sociology.[21] In the last two decades, research on sociological perspectives in international law has particularly focused on the practice of international lawyers as a legal profession,[22] the evolution, proliferation, and authority of international courts,[23] the practices of international adjudicators,[24] as well as the emergence and structure of legal fields, for instance in international economic law[25] as well as international criminal law.[26]

III. International Law and Political Science edit

Political science perspectives on international law primarily focus on the 'development, operation, spread, and impact of international legal norms, agreements, and institutions.'[27] They include theoretical and conceptual framework as well as political science methods, in particular qualitative and quantitative approaches. It expands the study of international law to investigate 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[28], 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.[29] Yet, the relevance and understanding of those factors depends on the different strands of international relations theory. In general, one can distinguish between at least four dominant strands: realism (focusing on power), institutionalism (focusing on the role of institutions and regimes), liberalism (focusing on how domestic factors influence international affairs), and constructivism (focusing on the role of norms).[30] Critical approaches such as Marxism, feminism, or post-structuralist strands are also applied. Historically, the disciplines of international law and international relations developed along related but usually not intersecting tracks.[31] 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,[32] Robert O. Keohane,[33] and, most prominently, Anne-Marie Slaughter.[34] Prominent IL-IR research strands focus on the compliance with international law,[35] questions of legality and legitimacy,[36] the emergence of norms[37] as well as their contestation,[38] and the proliferation of international courts.[39]

IV. International Law and Literature edit

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 this type of 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[40] and The Reader by Bernhard Schlink.[41] 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 or to illustrate a point of international law to fellow legal scholars;[42] 2) use works of literature as conceptual data to explore societal responses to international law;[43] or 3) use literature as a tool of jurisprudence in order to develop legal theory on particular issues.[44] Often, the aim of international law and literature, as with all law and literature interdisciplinary studies, the tool of the literature is to help people understand international law in a new or more accessible way. The respective type of literature can also move with time, for instance historical-oriented works have focused on the role of world-making in early 20th century fiction[45] while recent scholarship also discussed the depiction of international law in popular culture and modern fiction.[46]

V. International Law and Economics edit

The economic analysis of international law has emerged in the 2000s,[47] but builds on the more established domestic Law and Economics literature starting from the 1960 in US academia.[48] Its primary aim is to apply economic theory, in particular rational choice approaches, 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.[49] Methodologically, international law and economics scholarship often applies quantitative methods based on large datasets, as well as experiments. 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.[50] The economic approach to international law[51] has been focused on the different modes of treaty making,[52] the design of specific clauses such as treaty exits,[53] international dispute settlement,[54] and the legitimacy of customary international law.[55] Economic analyses also investigated how particular rules of institutional design might foster compliance.[56] A more recent but rapidly growing strand of interdisciplinary analysis on the economic analysis of international law is formed under the umbrella of Law and Political Economy (LPE).[57] Research on international law from an LPE perspective investigates how international law creates wealth and inequality[58] and upholds neoliberal hegemony[59] but also how it might 'contribute to understanding and transforming centre–periphery patterns of dynamic inequality in global political economic life.'[60]

VI. International Law and Psychology edit

International Law and Psychology has been developed in the 2010s and primarily adopts insights of behavioralism and cognitive psychology to international law. There 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'.[61] Behavioralism complements the economic approach by demonstrating that the action of individuals is often not determined by the maximum utility but influenced by several bias.[62] 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.[63] Behavioralist insights have been applied to a variety of international law issues, for instance, on treaty design[64], treaty interpretation,[65] international trade disputes,[61] bilateral investment treaties,[66] legal theory,[67] international humanitarian law[68] or how to incentivize compliance via rewards.[69]

VII. International Law and Anthropology edit

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.[70] 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.[71] 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.[72] Secondly, it goes against the state centrism of international law by focusing on how individuals and communities as well as non-state actors, corporations, organizations etc create and interact with international law also along transnational lines.[73] 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.[74] Anthropological perspectives have been applied to understand how human rights have spread globally while also being clearly affected by local dynamics,[75] how social movements engaged with struggles over international law,[76] interactions between indigenous law and international law,[77] the role of professionals such as lawyers and judges,[78] as well as case studies of different legal institutions and regimes, for instance in international criminal justice.[79]

VIII. International Law and Linguistics edit

International Law and Linguistics primarily focusses on the analysis of the language 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.[80] This includes also the study of different languages[81] as well as issues related to the translation of terms.[82] 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.[83] 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 applied to the interpretation of international legal norms,[84] the use of references in the decisions of international courts and tribunals[85] as well as self-citation practices in general.[86] Another important strand of research critically reflects on the language(s) in which international law claims universality[87] and challenges the English-centrism of international law.[88]

IX. International Law and Other Approaches edit

It is essential to point out that there are also a multitude of other types of interdisciplinary approaches to international law and legal research. Those have been particularly popular in new fields of legal research, for instance in the area of climate research, animal studies, or technology and data science. In general, for interactions with philosophy, you can find inspiration in the chapter on positivism, while critical approaches explained in this book such as TWAIL, Marxism, and Feminism & Queer Theory, also suit themselves to interdisciplinary research agendas.

C. Methods of Interdisciplinary International Law Scholarships edit

While traditional legal scholarship mainly advocates for the doctrinal method, the toolbox of interdisciplinary approaches offers a much wider variety of methods to study international law. In the following, we propose the four main methodological "baskets": comparative method, archival research, qualitative method, and quantitative method. Those four methodological baskets are not mutually exclusive but can be combined and also complement each other, as well as classical doctrinal approaches.

I. Comparative Method edit

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 research units to identify parallels and differences. Interdisciplinary research puts significant emphasis on justifying the design of a comparison. After identifying the research question, the respective scholar generally justifies the comparability of the respective research units.[89] The respective research units are called a case. The notion of case here is broader than its general use in international law (see Case Analysis). A 'case' in interdisciplinary scholarship can be a judgment, an institution, a court, or even a legal system as such. For instance, comparative international law has focused on understanding how and why national legal cultures differ in their engagement with international law.[90] In particular when there is only a small number of research units, interdisciplinary scholars aim to 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.[91]

II. Archival Research edit

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 doctrinal research.[92] 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.'[93] Archives can be either physically located or online, but this primary purpose does not 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.[94] 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 – if 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 edit

While quantitative research is an empirical research method grounded in numerically measurable data, qualitative research focuses on an often hermeneutical interpretation of 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.[95] Those different forms of texts are either created by the researcher, for instance by conducting interviews or surveys among the interested research units themselves, or assembled from existing texts, for instance records of debates of newspapers.[96] The respective number of texts depends on the research question, that means a more specific question requires more specific information. In general, the gathered texts should at least constitute a representative sample to be able to guarantee validity, reliability, and objectivity of the resulting analysis. After a significant amount of text data is gathered, the texts will be analyzed in a structured and previously identified method to identify particular patterns, arguments, or frames in the respective texts. Qualitative research methods enable a researcher to understand why a phenomenon is occurring.[97] This can be contrasted with quantitative based investigations that are more focused on establishing what is occurring. 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.[98]

IV. Quantitative Research Methods edit

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.[99] Quantitative methods are based on numerical data, which generally means large numbers of texts or codes in international law, for instance from legislation, treaties or jurisprudence.[100] 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 (N means the number of research units) sample size. Hence, in international law, quantitative methods have so far been applied to the jurisprudence of international courts,[101] as well as legal regimes which feature a large number of legal instruments such as international human rights[102] or investment law.[103]

D. Pitfalls and Challenges edit

Interdisciplinary research is exciting and illuminating, it demonstrates that a researcher can look beyond the traditional legal methods and, in the best case, find answers that help to understand, analyze, and, in certain instances, improve the functioning of international law. However, interdisciplinary research comes also with unexpected challenges. In the following section, we provide practical recommendations to overcome the most common pitfalls.

I. Finding the Right Method for Your Research Question edit

Doctrinal law scholars are notoriously bad at articulating their methodology, often stating “I just read some stuff and then I analyse it.”[104] In this dominantly doctrinal-positivist academic culture, interdisciplinary research in law is referred to under the broad umbrella of “socio-legal” research.[105] One of the biggest hurdles faced by this broad and inclusive categorisation research is that it doesn’t provide clarity on what it is the interdisciplinary research is doing and which particular method should be applied. The range of methods that are available to interdisciplinary scholars are extensive and cannot be covered here in full.[106] Interdisciplinary methods constitute a broad and diverse toolbox that can be applied to positivist as well as critical understandings of international law. The key to understanding what method is most appropriate for the question you are trying to address in your research is familiarizing yourself with 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 justify both the theory and method you are bringing to your question and articulating why that method is being used and not a different one.[107] That said, one should be wary of scholarship that defines itself by the method rather than the research question.

II. Selection Bias edit

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 your data includes and accounts for cases that diverge from the pattern you are trying to demonstrate.[108] 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 edit

Particularly in interdisciplinary studies in international law, a researcher will use or rely upon an external (usually publicly accessible) data source.[109] Broadly speaking, the data source is considered external if the data was not 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 may exist 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 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.[110]

IV. Personal Constraints (Time, Skills, Resources) edit

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 Angela Melville noted that the best approach to assessing time constraints in empirical research was to generate a realistic timeline and then triple it.[111] 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 edit

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 biases 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 gets 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 researcher's 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. Do not try and explain away or mitigate those weaknesses, rather you should highlight how they demonstrate and need more data gathering and studying on an issue.

Further Readings edit

Conclusion edit

  • Learning: 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. The learning process is never finished.
  • Applying: For legal scholars, interdisciplinary perspectives to international law often require to learn not only about new methods and conceptual tools but also to adopt different epistemologies. This means, interdisciplinary research changes how one must structure the research, writing, and publication process.
  • Experimenting: International legal scholarship has adopted a broad variety of interdisciplinary research, some dominant strands have been summarized in this chapter, which provide a multitude of entry points to look at international law from an interdisciplinary perspective. They are not mutually exclusive. On the contrary, this variety is an open invitation to young scholars to experiment with interdisciplinary research, to try out new and unfamiliar research questions, methods, and approaches in order to broaden our understanding of international law. There is something for everyone!

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. Nikolas M. Rajkovic, 'Interdisciplinarity' in Jean d’Aspremont and Sahib Singh (eds), Concepts for International Law (Edward Elgar 2019) 490, 490.
  2. See also Moti Nissani, 'Fruits, Salads, and Smoothies: A Working Definition of Interdisciplinarity' (1995) 29 Journal of Educational Thought 121.
  3. Outi Korhonen, 'From interdisciplinary to x-disciplinary methodology of international law' in Rossana Deplano and Nicholas Tsagourias (eds), Research Methods in International Law (Edward Elgar 2021) 345.
  4. Martti Koskenniemi, 'Letter to the Editors of the Symposium' (1999) 93 American Journal of International Law 351.
  5. Jan Klabbers, 'The Relative Autonomy of International Law or the Forgotten Politics of Interdisciplinarity' (2004) 1 Journal of International Law and International Relations 35.
  6. Outi Korhonen, 'Within and Beyond Interdisciplinarity in International Law and Human Rights' (2017) 28 European Journal of International Law 625.
  7. On the limits and possibilities of interdisciplinarity, see also Sanne Taekema and Bart van Klink, 'On the Border: Limits and Possibilities of Interdisciplinary Research' in Bart van Klink and Sanne Taekema (eds.), Law and Method. Interdisciplinary Research into Law (Mohr Siebeck 2011) 7.
  8. Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (CUP 2015).
  9. James Crawford, The Creation of States in International Law (2nd ed, OUP 2006).
  10. Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP 2001).
  11. Anne Orford, International Law and the Politics of History (CUP 2021).
  12. Bret Boyce, ‘Originalism and the Fourteenth Amendment’ (1998) 88 Wake Forest Law Review 909, 915.
  13. For recent examples, see Cristian Van Eijk, ‘Unstealing the Sky: Third World Equity in the Orbital Commons’ (2022) 47 Air and Space Law 25; Mark Chadwick, Piracy and the Origins of Universal Jurisdiction: On Stranger Tides? (Brill/Nijhoff 2019); Tamsin Paige, ‘Piracy and Universal Jurisdiction’ (2013) 12 Macquarie Law Journal 131.
  14. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005).
  15. Ntina Tzouvala, Capitalism As Civilisation: A History of International Law (CUP 2020).
  16. Juan Pablo Scarfi,The Hidden History of International Law in the Americas: Empire and Legal Networks (OUP 2017).
  17. James Thuo Gathii, 'Africa' in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of the History of International Law (OUP 2015) 943.
  18. Lauri Mälksoo, Russian Approaches to International Law (OUP 2015).
  19. Onuma Yasuaki, 'When Was the Law of International Society Born - An Inquiry of the History of International Law from an Intercivilizational Perspective' (2000) Journal of the History of International Law 1.
  20. Tamsin Phillipa Paige, Petulant and Contrary: Approaches by the Permanent Five Members of the UN Security Council to the Concept of ‘threat to the Peace’ under Article 39 of the UN Charter (Brill/Nijhoff 2019) 33.
  21. Tamsin Phillipa Paige, ‘Let’s Talk About [Sociology], Baby … Let’s Talk About All the Good Things and the Bad Things That May Be’ (Opinio Juris, 17 July 2020).
  22. Jean d'Aspremont, Tarcisio Gazzini, André Nollkaemper, and Wouter Werner (eds), International Law as a Profession (CUP 2017).
  23. Mikael Rask Madsen, 'From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics: The European Court of Human Rights' (2007) 32 Law & Social Inquiry 137.
  24. Salvatore Caserta and Mikael Rask Madsen, 'The situated and bounded rationality of international courts: A structuralist approach to international adjudicative practices' (2022) 35 Leiden Journal of International Law 931.
  25. Moshe Hirsch, 'The Sociology of International Economic Law: Sociological Analysis of the Regulation of Regional Agreements in the World Trading System' (2008) 19 European Journal of International Law 277.
  26. Mikkel Jarle Christensen, 'The Professional Market of International Criminal Justice: Divisions of Labour and Patterns of Elite Reproduction' (2021) 19 Journal of International Criminal Justice 783.
  27. Emilie M. Hafner-Burton, David G. Victor and Yonatan Lupu, 'Political Science Research on International Law: The State of the Field' (2012) 106 American Journal of International Law 47.
  28. See for instance, Alpheus Henry Snow, 'International Law and Political Science' (1913) 7 American Journal of International Law 315.
  29. For an interdisciplinary international law textbook, see Basak Cali (ed), International Law for International Relations (OUP 2009).
  30. Beth Simmons, 'International Law and International Relations' in Gregory A. Caldeira, R. Daniel Kelemen, and Keith E. Whittington (eds), The Oxford Handbook of Law and Politics (OUP 2008).
  31. Jeffrey L. Dunoff and Mark A. Pollack, 'International Law and International Relations. Introducing an Interdisciplinary Dialogue' in: Jeffrey L. Dunoff and Mark A. Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations. The State of the Art (CUP 2013) 3.
  32. Kenneth W. Abbott, 'Modem International Relations Theory: A Prospectus for International Lawyers' (1989) 14 Yale Journal of International Law 335.
  33. Robert O. Keohane, 'International Relations and International Law: Two Optics' (1997) 38 Harvard International Law Journal 487.
  34. Anne-Marie Slaughter, Andrew S. Tulumello and Stepan Wood, 'International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship' (1998) 92 American Journal of International Law 367.
  35. Beth A. Simmons, 'Compliance with International Agreements' (1998) 1 The Annual Review of Political Science 75.
  36. Jutta Brunnee and Stephen J. Toope, Legitimacy and Legality in International Law. An Interactional Account (CUP 2013).
  37. Martha Finnemore and Kathryn Sikkink, 'International Norm Dynamics and Political Change' (1998) 52 International Organization 887.
  38. Antje Wiener, Contestation and Constitution of Norms in Global International Relations (CUP 2018).
  39. Karen Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press, 2014).
  40. China Miéville, The City & the City (Macmillan 2009).
  41. Bernhard Schlink, The Reader (Vintage International 1995).
  42. See for instance, Kenneth Anderson, ‘Space Law Update - US Won’t Build Death Star, Also Does Not Support Blowing Up Planets’ (Opinio Juris, 12 January 2013); Australian Red Cross, ‘Game of Thrones: Violations of and Compliance with International Humanitarian Law’ (Australian Red Cross 2019); Stephen Bainbridge, ‘Was the Alderaan Incident Consistent with Just War Theory’ (ProfessorBainbridge.com, 6 June 2005); Kevin Jon Heller, ‘The Problem with “Crossing Lines”’ (Opinio Juris, 25 June 2013).
  43. Tamsin Phillipa Paige, ‘Zombies as an Allegory for Terrorism: Understanding the Social Impact of Post-9/11 Security Theatre and the Existential Threat of Terrorism Through the Work of Mira Grant’ (2021) 33 Law and Literature 119.
  44. Mark Bould and China Miéville (eds), Red Planets: Marxism and Science Fiction (Pluto Press 2009).
  45. Christopher Gevers, 'International law, literature and worldmaking' in Shane Chalmers and Sundhya Pahuja (eds), Routledge Handbook of International Law and the Humanities (Routledge 2021).
  46. See for instance, the contributions in the "International Law and Popular Culture Symposium at Opinio Juris in 2021 and 2022.
  47. Jeffrey L. Dunoff and Joel P. Trachtman, 'Economic Analysis of International Law' (1999) 24 Yale Journal of International Law 1.
  48. Herbert Hovenkamp, 'Law and Economics in the United States: A Brief Historical Survey' (1995) 19 Cambridge Journal of Economics 331; George L. Priest, The Rise of Law and Economics. An Intellectual History (Routledge 2020).
  49. Andrew T. Guzman, How International Law Works: A Rational Choice Theory (OUP 2008); Joel P. Trachtman, The Economic Structure of International Law (Harvard University Press 2008)
  50. Andrew Guzman and Alan O'Neil Sykes, 'Economics of International Law' in Francesco Parisi (ed), The Oxford Handbook of Law and Economics: Volume 3: Public Law and Legal Institutions (OUP 2017).
  51. Anne van Aaken, Christoph Engel, and Tom Ginsburg, 'Public International Law and Economics. Symposium Introduction' (2008) 1 University of Illinois Law Review 1.
  52. Kenneth W. Abbott and Duncan Snidal, 'Hard and Soft Law in International Governance' (2000) 54 International Organization 421.
  53. Laurence R. Heifer, 'Exiting Treaties' (2005) 91 Virginia Law Review 1579.
  54. Andrew T. Guzman, 'International Tribunals: A Rational Choice Analysis' (2008) 157 University of Pennsylvania Law Review 171.
  55. Jack L. Goldsmith and Eric A. Posner, 'A Theory of Customary International Law' (1999) 66 University of Chicago Law Review 1113.
  56. Andrew Guzman, How International Law Works: A Rational Choice Theory (OUP 2008).
  57. Alberta Fabbricotti (ed), The Political Economy of International Law: A European Perspective (Edward Elgar 2016). However, some doubt whether international law and political economy scholarship is actually interdisciplinary (using methods, concepts, and approaches from the discipline of political economy) but rather a form of critical analysis of international (economic) law, see John Haskell and Akbar Rasulov, 'International Law and the Turn to Political Economy' (2018) 31 Leiden Journal of International Law 243.
  58. Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton University Press 2019).
  59. Nina Tzouvala, 'International Law and (the Critique of) Political Economy' (2022) 121 South Atlantic Quarterly 297.
  60. David Kennedy, 'Law and the Political Economy of the World' (2013) 26 Leiden Journal of International Law 7.
  61. a b Tomer Broude, 'Behavioral International Law' (2015) 163 University of Pennsylvania Law Review 1099. Invalid <ref> tag; name ":2" defined multiple times with different content
  62. Anne van Aaken and Tomer Broude, 'The Psychology of International Law: An Introduction' (2019) 30 European Journal of International Law 1225.
  63. Anne van Aaken, 'Behavioral International Law and Economics' (2014) 55 Harvard Journal of International Law 421.
  64. Jean Galbraith, 'Treaty Options: Towards a Behavioral Understanding of Treaty Design' (2013) 53 Virginia Journal of International Law 309.
  65. Anne van Aaken, 'The Cognitive Psychology of Rules of Interpretation in International Law' (2021) 115 AJIL Unbound 258.
  66. Lauge N. Skovgaard and Emma Aisbett, 'When the claim hits: bilateral investment treaties and bounded rational learning' (2013) 65 World Politics 273.
  67. Anne van Aaken, 'Experimental Insights for International Legal Theory' (2019) 30 European Journal of International Law 1237.
  68. Tomer Broude and Inbar Levy, 'Outcome Bias and Expertise in Investigations under International Humanitarian Law' (2019) 30 European Journal of International Law 1303.
  69. Anne van Aaken and Betül Simsek, 'Rewarding in International Law' (2021) 115 American Journal of International Law 195.
  70. Gerhard Anders, 'Anthropology and International Law' Oxford Bibliographies (OUP 2021); Annelise Rise, 'Introduction to the Symposium on The Anthropology of International Law' (2021) 115 AJIL Unbound 268.
  71. Sally Engle Merry, 'Anthropology and International Law' (2006) 35 Annual Review of Anthropology 99.
  72. Miia Halme-Tuomisaari, 'Toward a Lasting Anthropology of International Law/Governance' (2016) 27 European Journal of International Law 235.
  73. Sally Engle Merry, 'Anthropology, Law, and Transnational Processes' (1992) 21 Annual Review of Anthropology 357.
  74. Ricarda Rösch, 'Learning from anthropology. Realizing a critical race approach to (international) law' Voelkerrechtsblog (19 February 2018).
  75. Sally Engle Merry, 'Transnational Human Rights and Local Activism: Mapping the Middle' (2006) 108 American Anthropologist 38; Karen Engle, 'From Skepticism to Embrace: Human Rights and the American Anthropological Association from 1947-1999' (2001) 23 Human Rights Quarterly 536.
  76. Boaventura de Sousa Santos and César A. Rodriguez-Garavito (eds), Law and Globalization from Below: Towards a Cosmopolitan Legality (CUP 2005).
  77. Paulo Ilich Bacca, 'Indigenizing International Law, Part 1: Learning to Learn from Below' (Blog of the APA, 23 August 2019).
  78. Yves Dezalay and Bryant Garth (eds), Lawyers and the Construction of Transnational Justice (Routledge 2012).
  79. Richard Ashby Wilson, Writing History in International Criminal Trials (CUP 2012).
  80. Ulf Linderfalk, 'Introduction: Language and International Law' (2017) 86 Nordic Journal of International Law 119.
  81. Clara Chapdelaine-Feliciati, 'The semiotic puzzle: Authentic languages & international law' (2020) 5 International Journal of Legal Discourse 317.
  82. Markus Beham, 'Lost in translation. Varying German-language versions of international treaties and documents' (Voelkerrechtsblog, 17 June 2019); Jean d’Aspremont, ‘International Law, Universality, and the Dream of Disrupting from the Centre’ (2018) 7 ESIL Reflections 1; Jacqueline Mowbray, 'The future of international law: shaped by English' (Voelkerrechtsblog, 18 June 2014).
  83. Benedikt Pirker and Jennifer Smolka, 'International Law and Linguistics: Pieces of an Interdisciplinary Puzzle' (2020) 11 Journal of International Dispute Settlement 501.
  84. Ingo Venzke, How Interpretation Makes International Law. On Semantic Change and Normative Twists (OUP 2012).
  85. See for instance, Antje Wiener and Philip Liste, 'Lost Without Translation? Cross-Referencing and a New Global Community of Courts' (2014) 21 Indiana Journal of Global Legal Studies 263; Silvia Steininger, 'What's Human Rights Got To Do With It? An Empirical Analysis of Human Rights References in Investment Arbitration' (2018) 31 Leiden Journal of International Law 33; Wayne Sandholtz, 'Human rights courts and global constitutionalism: Coordination through judicial dialogue' (2021) 10 Global Constitutionalism 439.
  86. Wolfgang Alschner and Damien Charlotin, 'The Growing Complexity of the International Court of Justice’s Self-Citation Network' (2018) 29 European Journal of International Law 83.
  87. Anthea Roberts, Is International Law International Law (OUP 2017).
  88. Justina Uriburu, 'Between Elitist Conversations and Local Clusters: How Should we Address English-centrism in International Law?' (Opinio Juris, 2 November 2020).
  89. See also, Ran Hirschl, 'The Question of Case Selection in Comparative Constitutional Law' (2005) 53 American Journal of Comparative Law 125.
  90. Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier, and Mila Versteeg (eds), Comparative International Law (OUP 2018).
  91. Charles Tilly, Big Structures, Large Processes, Huge Comparisons (Russell Sage Foundation 1984).
  92. For an example by the authors, see Tamsin Philippa Paige, Petulant and Contrary: Approaches by the Permanent Five Members of the UN Security Council to the Concept of ‘threat to the peace’ under Article 39 of the UN Charter (Brill/Nijhoff 2019).
  93. Alexis E. Ramsey, Wendy B. Sharer, Barbara L’Eplattenier, and Lisa Mastrangelo, 'Introduction' in ibid (eds), Working in the archives: practical research methods for rhetoric and composition (Southern Illinois University Press 2010) 1.
  94. Jennifer Clary-Lemon, ‘Archival Research Processes: A Case for Material Methods’ (2014) 33 Rhetoric Review 381, 385.
  95. Carl F Auerbach and Louise B Silverstein, Qualitative Data: An Introduction to Coding and Analysis (New York University Press 2003) 3.
  96. For examples of the authors, see Tamsin Philippa Paige, 'The Impact and Effectiveness of UNCLOS on Counter-piracy Operations' (2017) 22 Journal of Conflict & Security Law 97 (based on interviews); Silvia Steininger, 'What's Human Rights Got To Do With It? An Empirical Analysis of Human Rights References in Investment Arbitration' (2018) 31 Leiden Journal of International Law 33 (based on references in investment awards); Tamsin Philippa Paige, 'Zombies as an Allegory for Terrorism: Understanding the Social Impact of Post-9/11 Security Theatre and the Existential Threat of Terrorism through the Work of Mira Grant' (2020) 33 Law & Literature 119 (based on literary texts and an interview); Silvia Steininger, 'Creating loyalty: Communication practices in the European and Inter-American human rights regimes' (2022) 11 Global Constitutionalism 161 (based on interviews).
  97. Roger Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Ashgate 2006) 130-131; Moshe Hirsch, ‘The Sociology of International Economic Law: Sociological Analysis of the Regulation of Regional Agreements in the World Trading System’ (2008) 19 European Journal of International Law 277, 280.
  98. Moshe Hirsch, ‘The Sociology of Interntional Law: Invitation to Study International Rules in Their Social Context’ (2005) 55 University of Toronto Law Journal 891, 893; Paige, Petulant and Contrary (n 6) 34.
  99. Gregory Shaffer and Tom Ginsburg, 'The Empirical Turn in International Legal Scholarship' (2012) 106 American Journal of International Law 1.
  100. Wolfgang Alschner, Joost Pauwelyn and Sergio Puig, 'The Data-Driven Future of International Economic Law' (2017) 20 Journal of International Economic Law 217.
  101. Urska Sadl and Henrik Palmer Olsen, 'Can Quantitative Methods Complement Doctrinal Legal Studies? Using Citation Network and Corpus Linguistic Analysis to Understand International Courts' (2017) 30 Leiden Journal of International Law 327.
  102. Kevin L. Cope, Cosette D. Creamer and Mila Versteeg, 'Empirical Studies of Human Rights Law' (2019) 15 Annual Review of Law and Social Science 155.
  103. Daniel Behn, Ole Kristian Fauchald and Malcolm Langford (eds), The Legitimacy of Investment Arbitration. Empirical Perspectives (CUP 2022).
  104. Paige, ‘Let’s Talk About [Sociology], Baby … Let’s Talk About All the Good Things and the Bad Things That May Be’ (n 7).
  105. Dawn Watkins and Mandy Burton, ‘Introduction’ in Dawn Watkins and Mandy Burton (eds), Research methods in law (2nd ed, Routledge 2018) 4.
  106. For a starting point see, Dawn Watkins and Mandy Burton (eds), Research Methods in Law (2nd ed, Routledge 2018); Rossana Deplano and Nikolaos K Tsagourias (eds), Research Methods in International Law: A Handbook (Edward Elgar 2021).
  107. Fiona Cownie and Anthony Bradney, ‘Socio-Legal Studies: A Challenge to the Doctrinal Approach’ in Dawn Watkins and Mandy Burton (eds), Research methods in law (2nd ed, Routledge 2018) 46.
  108. Ian Dobinson and Francis Johns, ‘Legal Research as Qualitative Research’ in Dawn Watkins and Mandy Burton (eds), Research methods in law (2nd ed, Routledge 2018) 34.
  109. For instance, on international courts, the Pluricourts team at the University of Oslo has collected research databases for the most important international judicial bodies, see here https://www.jus.uio.no/pluricourts/english/services/. The UN also collects links to many international law databases, for instance on diplomatic conferences, peace treaties and case law, see here https://libraryresources.unog.ch/legal/databases.
  110. Paige, Petulant and Contrary (n 6) 38–42.
  111. Angela Melville, ‘Qualitative Methods’ (Early Career Research Workshop: Socio-legal Scholarship, ANU College of Law, 14 February 2013).



Author: Sué González Hauck

Required knowledge: Link

Learning objectives: Understanding XY.

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A. Introduction edit

This chapter introduces some of the most important approaches to international law, while the next chapter introduces methods in working within international law as a field of study, research, and practical expertise. The distinction between 'approaches' on the one hand and 'methods' on the other hand mirrors the distinction between methodology and method.[2] This introductory sub-chapter, first, introduces this distinction and thereby tries to illustrate what 'approaches' to international law are. Second, it reflects on the traditional approach to international law and on its relationship with positivism. Third, it briefly introduces commonalities among and pluralities within critical approaches to international law more broadly, and, fourth, offers short glimpses into the specific critical approaches on which the following sub-chapters will expand, namely feminist and queer theory approaches, Third World Approaches, and Marxist approaches to international law.

B. What is an Approach? Methodology and Method edit

The different approaches presented in this chapter represent different methodologies, i.e. different sets of ontological and epistemological premises, which shape any intellectual enterprise. Premises are the starting point of an argument. They are the statements that are taken for granted as the point of departure. Ontological premises, simply put, are premises on what there is in the world, i.e. on whether there is an objective truth and/or fixed reality 'out there' and on which elements in the world determine such truths and realities. Epistemological premises are premises on what we can know and on how we can acquire and establish knowledge. No intellectual enterprise can be carried out consistently, transparently and therefore professionally and rigorously without, at the outset, gaining clarity about the ontological and epistemological premises.

The terms 'method' and 'methodology' are often used interchangeably.[3] However, a useful distinction between the two consists in understanding methodology as a set of ontological and epistemological premises and therefore the point of departure, as explained above, and method as the roadmap guiding the individual steps to be taken from this point of departure. 'Method', then refers to the concrete application of the conceptual apparatus of a specific approach.[4]

C. Traditional International Law and Legal Positivism edit

Despite influential figures like Ian Brownlie having argued that theory is but fog that obscures the more interesting legal questions,[5] no inquiry into international law is possible without theory. It is necessary to at least be aware of the set of premises from which one is starting. The standard way of engaging with international law in the traditional approach, which Brownlie epitomises, consists in laying out 'what the law is' on a particular question by deriving the relevant rules from the sources of international law (mainly treaties, custom, and general principles, Art. 38(1) ICJ Statute) and by interpreting and applying these rules in accordance with existing authoritative interpretations and applications. This approach can be labeled 'doctrinal', 'traditional'[6], 'orthodox'[7], or simply 'mainstream'[8]. Making a claim to knowledge about 'what the law is', however, necessarily involves adopting a position on what 'law' is and on how we can know it. A position that claims to discard theory altogether will often just adopt an inconsistent theoretical position as the starting point of its argument.[9] This is often the case with the traditional, doctrinal, or orthodox approach. Another label which is often attached to this approach is 'positivist'.[10] Positivism, generally, is a label attached to the set of ontological and epistemological premises according to which there is a single, objective truth 'out there' and that it is possible for human beings to know this truth reliably. Legal positivism, as a philosophical position,[11] adopts these premises only for the established, i.e. 'positive' law, not for moral and other considerations, which are considered to be separate from law. Consequently, at least in 'hard cases', i.e. when the law employs vague terms like 'proportionality' or when the law has to be applied to circumstances not clearly reflected in the law, law is not longer a matter of cognition but of (usually a court's) decision. Philosophical legal positivists therefore agree that, at least in these 'hard cases', there is no single right answer to legal questions. However, practitioners who claim to be only interested in positive law and doctrinal scholars whose commitment to legal positivism mainly consists in adopting the perspective of practitioners and providing guidance by systematising existing legal materials, often operate under the assumption that answers about 'what the law is' have a single correct answer and that this answer can be found.[12] 'Positivism' in the sense of the traditional doctrinal approach is therefore often incompatible with philosophical legal positivism.

D. Critical International Law edit

Critical approaches to international law emerged from the Critical Legal Studies movement in the United States, which was heavily influenced, first, by postmodern philosophy and, second, by Legal Realism. From postmodern and (post)structuralist philosophy, Critical Legal Studies and critical approaches to international law derive the premises that there is no objective and single truth 'out there' and that knowledge creation is not about neutral and objective cognition of a pre-existing truth but rather about the 'conditions of possibility' for expressing certain claims and for having these claims recognised and count as knowledge. The main characteristic of critical approaches to international law, therefore, consists in the claim that international law is radically indeterminate,[13] i.e. that any course of action can be defended or rejected in terms of international law,[14] and that the question of which position prevails is not a question of sound legal argument or correct legal method but of politics.[15]This critique of the distinction between law and politics is what critical approaches to international law share with Legal Realism.

Martti Koskenniemi, who, together with David Kennedy[16], has been the main figure in articulating, defending, and popularising this position, argues in his famous work From Apology to Utopia that 'international law is singularly useless as a means for justifying or criticizing international behaviour'.[17] The reason for international law's radical indeterminacy, in Koskenniemi's account, is its fundamentally and irresolvably contradictory nature, which causes international legal arguments to oscillate between the poles of concreteness and normativity, apology and utopia. Legal arguments have to be both concrete and normative to be able to sustain the distinction between international law and politics and to be able to assume that law is more objective than politics.[18] Concreteness means that the law’s content has to be verified ‘not against some political principle but by reference to the concrete behaviour, will and interest of the States’.[19] Simultaneously, the law has to be normative in the sense that it has to be ‘opposable to State policy’.[20] This contradiction inherent in the need for both normativity and concreteness leads to descending and ascending patterns in legal justification. Legal obligations are either traced down to ‘justice, common interests, progress, nature of the world, community or other similar ideas to which it is common that they are anterior, or superior, to State behaviour’ (descending pattern of justification) or legal justifications of obligation and order in international affairs ‘takes as given the existence of States and attempts to construct a normative order on the basis of the “factual” State behaviour, will, and interest’ (ascending pattern of justification)’.[21] Koskenniemi argues that ‘[t]he two patterns – or sets of arguments – are both exhaustive and mutually exclusive’.[22] The dynamics of international legal argument are defined by constant shifts between these positions. The result is the radical indeterminacy of international law, which in turn is a result of this fundamental contradiction: ‘International legal discourse is incoherent as it incorporates contradictory assumptions about what it is to argue objectively about norms. This gives rise to conflicting legal arguments and the inability to prefer any of them’.[23] To seem coherent, individual arguments have to stress either normativity or concreteness, descending or ascending patterns of justification. In doing so, however, they become vulnerable to valid criticism from the opposing perspective. ‘The choice of solution is dependent on an ultimately arbitrary choice to stop the criticisms at one point instead of another’.[24] Koskenniemi highlights, however, that even though it is possible to justify any kind of practice in terms of international legal argument, in practice, it is not arbitrary at all which actions are justified and which ones are condemned. This is due to what Koskenniemi calls 'structural bias', which means that international legal institutions are designed to favour the status quo.[25]

E. Premises of Specific Critical Approaches to International Law edit

Even though they do not all adopt Koskenniemi's linguistic analysis of international law and differ from Koskenniemi in many other aspects, one way of characterising the other critical approaches to international law, which will be presented in the following sub-chapters, is that they offer focused accounts on specific 'structural biases' of international law. Feminist and queer theory approaches critique international law's bias favouring and centering men, while Third World Approaches focus on how international law is structured in a way that favours the Global North, harming the Global South. Marxist Approaches offer an entirely different view on international law's contradictory nature and oppressive structure. They do, however, share the view that international law produces and favours the status quo with all its exploitation and violence.

F. Conclusion edit

The approaches presented in this chapter offer different ways of thinking about international law. Any way of engaging with international law presupposes doing so using a specific lens or approach. This is true even and especially for the traditional doctrinal approach, even though this approach is rarely made explicit. The following sub-chapters present positivism, feminist and queer theory, Third World Approaches to International Law, and Marxist approaches to international law in more detail.

Further Readings edit

  • Source I
  • Source II

Conclusion edit

  • Summary I
  • Summary II

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
  2. Cf. Rossana Deplano and Nicholas Tsagourias, 'Introduction' in idem (eds) Research Methods in International Law: A Handbook (Cheltenham, UK, and Northampton, MA, USA Edward Elgar Publishing 2021) 1, at 1-5.
  3. Sundhya Pahuja, 'Methodology: Writing about how we do research' in: Rossana Deplano and Nicholas Tsagourias (eds) Research Methods in International Law: A Handbook (Cheltenham, UK, and Northampton, MA, USA Edward Elgar Publishing 2021) 60-77, at 61.
  4. International Law Theories: An Inquiry into Different Ways of Thinking (Oxford: Oxford University Press 2017) viii.
  5. Ian Brownlie, ‘International Law at the Fiftieth Anniversary of the United Nations – General Course on Public International Law (1995) 255 Collected Courses of The Hague Academy of International Law 9, 30.
  6. Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (Oxford: Oxford University Press 2017) 21
  7. Jörg Kammerhofer, 'International Legal Positivism', in Florian Hoffmann / Anne Orford (eds), The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press ) 407-426, at 413.
  8. Srinivas Burra, 'Teaching Critical International Law: Reflections from the Periphery' (TWAILR Reflections 12 March 2023) <https://twailr.com/teaching-critical-international-law-reflections-from-the-periphery/>
  9. See also: Sué González Hauck, 'The outside keeps creeping in: On the impossibility of engaging in purely doctrinal scholarship' (Völkerrechtsblog, 23 February 2021) <https://voelkerrechtsblog.org/de/the-outside-keeps-creeping-in-on-the-impossibility-of-engaging-in-purely-doctrinal-scholarship/> accessed 22 June 2023.
  10. Bruno Simma and Andreas L. Paulus, “The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: a Positivist View” (1999) 93 American Journal of International Law 302.
  11. On this philosophical legal positivism as an approach to international law, see, Basak Etkin and Alex Green, § 3.1, in this textbook.
  12. Danae Azaria, ‘Codification by Interpretation’: The International Law Commission as an Interpreter of International Law' (2020) 31 EJIL 171–200, at 176.
  13. For a more detailed introduction to Koskenniemi's argument on radical indeterminacy, see: Jean-François Thibault, 'Martti Koskenniemi: Indeterminacy' (Critical Legal Thinking 8 December 2017) <https://criticallegalthinking.com/2017/12/08/martti-koskenniemi-indeterminacy/> accessed 23 June 2023.
  14. Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument. Reissue with a new Epilogue (Cambridge: Cambridge University Press 2006) 591.
  15. Martti Koskenniemi, ‘‘The Politics of International Law’’ (1990) 1 EJIL 4–32.
  16. See, e.g., David Kennedy, International Legal Structures (Baden-Baden: Nomos 1987).
  17. Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument. Reissue with a new Epilogue (Cambridge: Cambridge University Press 2006) 67.
  18. Ibid, 58.
  19. Ibid.
  20. Ibid.
  21. Ibid, 59.
  22. Ibid.
  23. Ibid, 63.
  24. Ibid, 67.
  25. Ibid, 605-606.


Author: Başak Etkin & Alex Green

Required knowledge: Link

Public International Law/History of International Law/Founding Myths

Public International Law/History of International Law/Nineteenth Century

Public International Law/Nature and Purpose of International Law

Public International Law/Approaches

Learning objectives: Understanding analytical and normative positivism and their differences from international legal positivism, identifying the major critiques of positivism.

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A. Positivism as Method and Ideology edit

Legal positivism is a theory about law determination. Law determination concerns what it means for the content of the law to be 'fixed' or 'made what it is', (e.g. the threat of use of force is unlawful because art. 2.4 of the UN Charter forbids it). Legal positivism asserts that legal facts are determined by social facts, and all law is posited/positive. In this framework, law’s existence and content are determined by the social facts alone (i.e. value-neutral descriptions of social behaviour, e.g. the fact that people take their hats off when entering a church) recognized by the officials of a legal system, independently of its moral (or other) merits (the ‘social thesis’). Legal positivism first emerged as a reaction to natural law theories in the 18th century. Its roots are in the works of Jeremy Bentham[2][3] (1748–1832), who sought to criticise and reform natural law theories. Analytical legal positivism is and has been, if not the most, one of the more influential theories on modern legal theory and on international law, though some use 'positivism' to describe with the 'mainstream' doctrinal approach to international law.[4]

I. Analytical Positivism edit

As their main point of convergence, all legal positivists agree upon the separability thesis (i.e. that law and morality are not necessarily linked) as it is what defines them, despite other differences. It is thanks to the separation of law and morality imposed by positivism that criticising the content of law is a possibility. However, to what degree law and morality are separated has been a point of contention between inclusive (soft) and exclusive (hard) positivists. Inclusive positivists allow for moral elements (e.g. widespread moral beliefs in a society) to be included directly or indirectly in the rule of recognition. Exclusive legal positivists, on the other hand, reject all moral element in the rule of recognition as they defend that this would make the problem of uncertainty remain unsolved. Both sides of the argument agree that when the rule of recognition does not give a clear answer to the question ‘what is the law?’, courts create law.[5]

Analytical positivism was first popularised by John Austin[6][7] (1790-1859), who developed the command theory, the concept that law consists of ‘orders backed by threats’. Here, the ‘order’ represents the command of the sovereign; this will is habitually obeyed and disobedience is sanctioned by a ‘threat’.

H.L.A. Hart (1907-1992), an English legal philosopher, inclusive legal positivist and a prominent critic of Austin, offered a comprehensive critique of the command theory in his 1961 influential book, ‘The Concept of Law’,[8] and refined legal positivism further.[9] Hart’s rebuttal demonstrated three main issues with the command theory: that it did not include customary law,[10] that not all laws commanded or prohibited specific actions,[11] and the impossibility of identifying a sovereign with unlimited law-making powers.[12] Hart proposed an alternative framework, summarised as ‘a union of primary and secondary rules’.[13] Primary rules establish obligations and confer powers to guide human conduct (e.g. it is forbidden to cross the street when the red light is on). In some communities, described by Hart as ‘primitive’, law consists solely of these primary rules, but primary rules alone do not make a legal system, which also requires secondary rules, which serve as organisational meta-rules, or rules that govern the primary rules. According to Hart, these secondary rules address three main shortcomings: (1) the uncertainty around which rules are valid in this system, (2) the static character of the rules, and (3) the inefficiency of the rules. These problems are solved by, respectively, (1) the rule of recognition, providing the criteria of legal validity and answering the question 'what is the law?', (2) the rule of change establishing the procedures for introducing new primary rules, modifying existing ones, and abolishing old ones, answering the question 'how does the law change?', and (3) the rule of adjudication determining those with the authority to adjudicate and defining the procedure to follow, answering the question 'how to implement the law?'. All secondary rules can be classified under one of these three categories.

Hart is often presented in opposition to his continental counterpart Hans Kelsen (1881-1973), an Austrian jurist, who was more influential in civil law systems. Kelsen was closer to Austin’s look than Hart, as in his view laws were norms addressed to officials and not at subjects – i.e. norms to be applied by courts if an offence was committed.[14] Another point of divergence between Hart and Kelsen was legal validity; for Hart legal validity depended on social recognition but for Kelsen legal validity was a normative ('ought' not 'is') question. He argued that legal rules are deemed valid only when formally grounded in higher norms, following the prescribed procedural frameworks. This stepped construction (Stufenbau) culminates in the concept of the Grundnorm (basic norm), as Kelsen presented in ‘Reine Rechtslehre’.[15] The Grundnorm is the presupposed legal proposition at the foundation of any legal system, a simple fiction to uphold validity.[16]

Another prominent figure in legal positivism is the Israeli legal philosopher Joseph Raz (1939-2022). In his 1979 book ‘The Authority of Law: Essays on Law and Morality’,[17] Raz developed a more modern take on the social thesis and the sources thesis (i.e., that law is identified by reference to its sources), asserting that law’s existence and content cannot rely on moral arguments, but can only be derived from social sources. As an exclusive positivist, Raz further explored the normative aspects of legal systems in ‘Practical Reasons and Norms[18] and makes the case that legal rules offer a practical justification for carrying out an obligation while excluding other justifications.

Most recently, the American legal philosopher Scott Shapiro’s book ‘Legality’ offered a new and alternative approach to legal positivism.[19] Shapiro’s planning theory of law advances the idea that legal systems are compulsory planning organizations, and his moral aim thesis suggests that law provides content-independent normative guidance to bypass moral disagreements.

II. International Legal Positivism and Normative Positivism edit

Normative positivism, perhaps more prevalent in international law than analytical positivism, defends the idea that positivism is not only true, but also valuable. Therefore analytical positivism, which does the intellectual heavy lifting, has to be true for normative positivism to even be considered. It should not be confused with normative approaches, such as Kelsen’s, as seen above. Jeremy Waldron argues that this take is more faithful to positivism’s origins, as Bentham’s intention was not to conceptually separate law and morality but to coordinate conflict resolution between the society’s laws and personal judgments about morality.[20] Lassa Oppenheim (1858-1919) also defended this point of view, suggesting that positivism was the best suited concept to advance moral and political values, as demonstrated by his advocacy of international society.[21][22] Also adopted by Prosper Weil, this has been a particularly influential approach in international law.[23]

Some aspects of analytical positivism could seem incompatible with international law, such as Austin’s command theory that could cast a doubt on its validity of, given the lack of an almighty sovereign in the international arena.[24] Another such potential issue is around pluralism and Kelsen’s account of legal validity based on normativity that favours monism (i.e. that the different branches of international law and all domestic legal systems taken together make a unified regime).[25] International law is a highly fragmented domain with numerous regional and international regimes, and it is often difficult to establish which are the hierarchically superior norms in a given situation. However, modern legal positivism has evolved quite significantly and has developed sophisticated answers to questions that arise within international law.

International legal positivism (i.e. positivism as understood and upheld by international lawyers), much like its analytical counterpart explained above, is far from being a monolith, and in some ways it diverges from legal positivism.[26][27][28] Most notably, international legal positivism is, partially because of the weight given to state will in international law, more often confused with consensualism or voluntarism.[29] However, treaties are the only consent-based source of international law, in the strict and explicit understanding of consent. Therefore, the rule of recognition of international law (which, despite some confusion, is not Article 38 of the Statute of the International Court of Justice) does not include consent and the sources thesis applied to international law does not paint a consensualist picture.[30] While neo-voluntarists survive, many contemporary international legal positivists separate the objective international legal order and the subjective will of states.[31]

International law’s compatibility with positivism is also called into question regarding jus cogens. These peremptory norms are ‘accepted and recognized […] as a norm from which no derogation is permitted’ according to the 1969 Vienna Convention on the Law of Treaties, thus the criteria does not breach the separability thesis, but one can easily identify the moral undertone once a series of examples are given: prohibitions of genocide, torture and slavery. Some exclusive legal positivists believe that acknowledging the existence of jus cogens undermines the separability thesis, but this problem can be solved by saying that the moral belief or judgment shared by states is a social fact, and that is what makes jus cogens, not its inherent moral value.[32]

B. Critiques of Positivism edit

Legal positivism, as we have seen, is the view that the content of international legal norms is made what it is (that is, determined or ‘fixed’) by social facts alone. These social facts typically relate to the 'pedigree' of those norms: their historical roots in particular social sources, such as treaty texts or expressions of opinio juris. 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,[33] which include moral values, genuine normative principles, and practical reasons that govern how individuals should 'live together', organise themselves, and behave at the collective levels of national and international society.

Example for Non-positivist approaches: Consider a more-or-less uncontroversial legal 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 argue 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. (See: Alex Green, ‘The Precarious Rationality of International Law: Critiquing the International Rule of Recognition’ (2022) 22(8) German Law Journal 1613, 1626.)


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.[34] 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 tends to produce 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,[35] 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.

Advanced: The concrete impacts of non-positivist approaches

Non-positivist approaches to international legal reasoning differ at the interpretive and argumentative levels from their more 'formalist' positivist equivalents. In particular, a non-positivist reasoning within any given area of law may be more willing to infer legal conclusions not directly supported by clear precedents than their positivist colleagues. As such, non-positivism is often considered to be the more 'radical' or 'progressive' of the two approaches.

For example, in his non-positivist 'reconstruction' of James Crawford's famous 'The Creation of States in International Law', Alex Green identifies three broad normative commitments that run through Crawford's work on the law that governs the creation of new states. Where Crawford himself - a self-professed positivist - is hesitant to draw direct conclusions from more abstract normative principles of this kind, Green instead contends that such commitments have concrete implications for several questions related to the existence and continuity of states. In particular, he argues that when we engage in legal reasoning based on 'cautious optimism', 'nuance', and 'humanity', we are inevitably pushed towards the conclusion that Small Island Developing States should retain their legal statehood notwithstanding any losses of inhabitable land they may suffer due to human-caused climate change. (See: Alex Green 'The Creation of States as a Cardinal Point: James Crawford’s Contribution to International Legal Scholarship' 2022 40(1) AYBIL 67.)


I. Insufficient Consensus edit

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.[36] Within international law, the relevant legal officials include state representatives and international adjudicative bodies, to name but two examples. One possible reason for rejecting this kind of positivism at the international level is that international law lacks sufficient convergence in official attitude or behaviour, meaning that no rule of recognition can be said to exist within that legal order.[37] So, for instance, although it might be true that the text of a particular bilateral investment treaty is binding on its State Parties because of their consent to be bound by that text, it nonetheless remains the case that the binding force of pacta sunt servanda requires explaining and there is little to no consensus at the international level as to the precise status of that principle (for example, whether it is a general principle of law or custom).

Example for the lack of official consensus on the sources of international law: In his paper 'The Precarious Rationality of International Law: Critiquing the International Rule of Recognition', Alex Green provides the following argument ((2022) 22(8) GLJ 1613: 1630, citations omitted): "...assume that we can discover at least some international law by identifying “international custom, as evidence of a general practice, accepted as law.” Furthermore, assume that this requires at least two things: (i) Public statements or other indications on the part of state representatives that a particular law exists; and (ii) behavior in general conformity with that proposed law on the part of such representatives. Many questions persist. Is an individual state’s consent necessary for such laws to become binding upon it? Should custom-constituting practice be drawn exclusively from state representatives? What is the relevance of UN General Assembly resolutions, or the judgments of international courts and tribunals? Can regional practice give rise to obligations limited by geographical area? Disagreement on such issues suggests that it would be overly optimistic to speak of an extensive consensus on the concrete criteria of validity for norms of customary international law, even if nominal consensus exists at higher levels of abstraction.


This view about the absence of a rule of recognition, interestingly enough, is close to the view that Hart himself professed about international law,[38] even if it has become unpopular amongst positivist international lawyers.[39] Recent scholarship has renewed attacks against positivism within international law along these lines.[40] Importantly, such criticisms raise issues 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.

II. ‘Rational’ Determination and Social Facts edit

Another doubt one may have about rules of recognition concerns the mechanics, as it were, of how such rules supposedly 'fix' the content of international law. Even if sufficiently the attitudes and behaviours of international legal officials are sufficiently convergent for one or more rules of recognition to exist, it is unclear why these attitudes and behaviours alone should be treated as determining the content of international law.[41] Why, in other words, should rules of recognition function in the way that positivists claim that they do? According to a broadly Hartian view of legal validity, the cumulative attitudes and behaviours of legal officials fix to the content of international law by definition. However, given what many non-positivists consider to be the plausible assumption that there must be a rational explanation for why legal norms exist in the way and with the content that they do, it is not obvious why official attitudes and behaviour should be treated this way.[42] For example, if we are asked to explain why pacta sunt servanda holds within international relations, it seems highly unsatisfactory to answer, 'because the relevant people believe that it does'. Positivism, understood in this way, fails to provide a sufficiently rational explanation for the existence of international law. This concern arises because the attitudes and practices of legal officials are social facts, with no necessary normative implications, and therefore cannot provide reasons why international law should be viewed one way, rather than another.[43] 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.[44] Nonetheless, concerns about the ‘rationality’ of positivism remain applicable to its purely analytical variants, notwithstanding this fact.

Example for 'Rational' Determination and Social Facts - An Imaginary Tribunal: Imagine that an international tribunal (‘the Tribunal’) were to deliver judgment in an ongoing case according to an absurd method: they flip a coin. When doing so, imagine the Tribunal holds that immediately prior to their decision to proceed in this manner, all the usual rules of law determination – the application of treaty texts, customary practices, and so on – were undoubtedly relevant. But all that changed, the Tribunal says, the second before their decision to resort to coin flipping was made. Clearly, the Tribunal is wrong, but why?

The state that lost the coin toss might object that the Tribunal wrongly ignored the relevant social facts. No prior item of state practice or expression of opinio juris, nor any academic or judicial commentary, mentioned that coin flipping would suddenly become the way to resolve complex legal disputes. The Tribunal, this losing state might say, is just ignoring international law. But the Tribunal could respond that this objection is mistaken because, at the moment when coin flipping became the correct way to resolve disputes, every legal rule that was previously applicable, including the ‘old’ rules for identifying international law, became irrelevant. They might also say that any current and continuing legal trends that suggest otherwise are simply mistakes: all legal orders, after all, contain at least some mistaken decisions. How can the losing state answer them?

‘Analytical’ legal positivists have no real answer to this question because everything our absurd imaginary tribunal says is logically consistent with the fact that international disputes ‘used to’ be resolved in the ‘normal way’. This holds because established legal trends, including the established attitudes and behaviour of legal officials, are social facts with no intrinsic normative implications of their own. By themselves such facts leave open the question of which standards they support and which standards they do not.

Once again, the point is not that such arguments are plausible: obviously they are ridiculous. The question is what makes them ridiculous. Non-positivists and normative positivists both have clear answers as to why: the Tribunal in this case is acting illegitimately and exceeding its authority by adopting a standard for the resolution of disputes that undermines the international rule of law. But that answer includes a value judgement – that the international rule of law is something worth promoting and defending – so it is unavailable to anyone who believes that legal argument is a matter of social facts alone.


III. The ‘Positive’ Non-Positivist Case edit

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. 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.[45] Considerations of this sort have motivated a range of contemporary non-positivist scholarship, both in relation to international law in general,[46] and as regards more discrete regimes, such as the law of statehood,[47] international trade law,[48] or the law of human rights.[49]

Further Readings edit

  • Etkin, Başak (2022). "Legal Positivism". Elgar Encyclopedia of Human Rights. Edward Elgar Publishing: 412–417.
  • Hart, HLA (1994). The Concept of Law (2nd ed.). OUP.
  • Kelsen, Hans (1945). General Theory of Law and State. Translated by Wedberg, A. Harvard University Press.
  • Kelsen, Hans (1967). Pure Theory of Law. Translated by Knight, M (2nd ed.). University of California Press.
  • Raz, Joseph (2009). The Authority of Law: Essays on Law and Morality (2nd ed.). OUP.
  • d’Aspremont, Jean (2017). "International Legal Positivism". Encyclopedia of the Philosophy of Law and Social Philosophy.
  • Kammerhofer, Jörg (2016). Orford, Anne; Hoffmann, Florian (eds.). "International Legal Positivism". The Oxford Handbook of the Theory of International Law. OUP: 407–426.
  • Dire Tladi (ed), Peremptory Norms of General International Law (Jus Cogens) Disquisitions and Disputations (Brill Nijhoff 2021)
  • Nahuel Maisley (2021) Better to see international law this other way: the case against international normative positivism, Jurisprudence, 12:2, 151-174.
  • Dworkin, Ronald (1986). Law’s Empire. Hart.
  • Greenberg, Mark (2004). How Facts Make Law, 10 Legal Theory 157.

Further Resources edit

Conclusion edit

  • Legal positivism is a theory about law determination, asserting that legal facts are determined by social facts, and all law is posited/positive. Law’s existence and content are determined by the social facts alone recognized by the officials of a legal system, independently of its moral (or other) merits (the ‘social thesis’). As their main point of convergence, all analytical legal positivists agree upon the separability thesis (i.e. that law and morality are not necessarily linked), and that law is identified by reference to its sources (the 'sources thesis').
  • Normative positivism defends the idea that positivism is not only true but also valuable. This has been a particularly influential approach in positivism as understood and upheld by international lawyers, international legal positivism. Some aspects of analytical positivism could seem incompatible with international law, but these issues no longer arise in modern legal positivism or are due to a confusion between positivism and other concepts (such as consensualism).
  • 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, which include moral values, genuine normative principles, and practical reasons that govern how individuals should 'live together', organise themselves, and behave at the collective levels of national and international society. Non-positivists, whilst agreeing with normative positivists 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.
  • Three issues illustrate non-positivism in international law. (1) There is insufficient consensus about a or the rule of recognition in international law. (2) Even if it existed, it is unclear how such rules supposedly 'fix' the content of international law, since many non-positivists consider to be the plausible assumption that there must be a rational explanation for why legal norms exist in the way and with the content that they do. (3) It is preferable to be transparent about one’s reliance upon political morality, instead of obscuring it behind a positivist veneeer, and one might believe that direct recourse to moral considerations within legal reasoning would be conducive to the promotion of global justice.

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
  2. Bentham, Jeremy (1970). Of Laws in General (unpublished manuscript, eds HLA Hart). Athlone Press.
  3. Bentham, Jeremy (1996). An Introduction to the Principles of Morals and Legislation (first published 1789, Burns JH and Hart HLA eds). OUP.
  4. Bianchi, Andrea (2016). International Law Theories: An Inquiry into Different Ways of Thinking. New York: Oxford University Press. pp. 22–43.
  5. Especially when facing extra-legal notions such as ’proportional’ or ‘reasonable’.
  6. Austin, John (1995). The Province of Jurisprudence Determined (first published 1832). CUP.
  7. Austin, John (2002). Campbell, R (ed.). Lectures on Jurisprudence, or the Philosophy of Positive Law (first published 1879) (4th ed.). Thoemmes Press.
  8. Hart, HLA (1994). The Concept of Law (2nd ed.). OUP.
  9. Hart, HLA. "Positivism and the Separation of Law and Morals". Harvard Law Review. 71: 593.
  10. Id. 44-49.
  11. Id. 27-44.
  12. Id. 66-71.
  13. Id. 79-99.
  14. Kelsen, Hans (1945). General Theory of Law and State. Translated by Wedberg, A. Harvard University Press. pp. 58–64.
  15. Kelsen, Hans (1967). Pure Theory of Law. Translated by Knight, M (2nd ed.). University of California Press.
  16. Id. 193-221.
  17. Raz, Joseph (2009). The Authority of Law: Essays on Law and Morality (2nd ed.). OUP.
  18. Raz, Joseph (1999). Practical Reasons and Norms (2nd ed.). OUP.
  19. Shapiro, Scott (2011). Legality. Belknap Press.
  20. Waldron, Jeremy (2001). "Normative (or Ethical) Positivism". In Coleman, J (ed.). Hart’s Postscript: Essays on the Postscript to ‘The Concept of Law’. OUP.
  21. Oppenheim, Lassa (April 1908). "The Science of International Law: Its Task and Method". American Journal of International Law. 2 (2): 313–356.
  22. Kingsbury, Benedict (April 2002). "Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law". European Journal of International Law. 13 (2): 401–437.
  23. Weil, Prosper (July 1983). "Towards Relative Normativity in International Law?". American Journal of International Law. 77 (3): 413–442.
  24. On Enforcement, see Quiroga-Villamarín, § 2.3, in this textbook.
  25. For more: on Interaction within International Law, see Rachovitsa, § 5.1, in this textbook; on International Law and Domestic Law, see Kunz, § 5.2, in this textbook.
  26. Etkin, Başak (2022). "Legal Positivism". Elgar Encyclopedia of Human Rights. Edward Elgar Publishing: 412–417.
  27. d’Aspremont, Jean (2017). "International Legal Positivism". Encyclopedia of the Philosophy of Law and Social Philosophy.
  28. Kammerhofer, Jörg (2016). Orford, Anne; Hoffmann, Florian (eds.). "International Legal Positivism". The Oxford Handbook of the Theory of International Law. OUP: 407–426.
  29. On Consent, see González Hauck, § 2.2, in this textbook.
  30. On Sources, see Eggett, § 6, in this textbook.
  31. Kammerhofer, Jörg; d’Aspremont, Jean, eds. (2014). International Legal Positivism in a Post-Modern World. CUP.
  32. Hameed, Asif (2014). "Unravelling the Mystery of Jus Cogens in International Law". British Yearbook of International Law (84): 52.
  33. Hasan Dindjer, ‘The New Legal Anti-Positivism’ (2020) 26(3) Legal Theory 181.
  34. Ronald Dworkin, Law’s Empire (Hart 1986) 114-130, 238-258. The distinction as presented here may elide non-positivism and ‘soft’ positivism, which accepts that moral reasoning can indeed form part of legal reasoning but only to the extent that moral norms are ‘incorporated’ within the law by norms that are themselves determined ultimately and exclusively by social facts. For more on soft positivism, see: Eleni Mitrophanous, ‘Soft Positivism’ (1997) 17(4) Oxford Journal of Legal Studies 621.
  35. Nahuel Maisley, ‘Better to See International Law this Other Way: The Case Against International Normative Positivism’ (2021) 12(2) Jurisprudence 151.
  36. Green (n XXX) 1619-1620.
  37. Ibid 1627-1633.
  38. H.L.A. Hart, The Concept of Law (OUP 1994) 236.
  39. Jeremy Waldron, ‘International Law: “A Relatively Small and Unimportant” Part of Jurisprudence?’ in Luís Duarte d’Almeida, James Edwards, and Andrea Dolcetti (eds.), Reading H.L.A. Hart’S ‘The Concept of Law’ 209, 219–22 (Bloomsbury 2013); Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21 European Journal of International Law 967, 989–93.
  40. Green (n XXX); David Lefkowitz, ‘What Makes a Social Order Primitive? In Defense of Hart’s Take on International Law’ (2017) 23(4) Legal Theory 258.
  41. Mark Greenberg, ‘Hartian Positivism and Normative Facts: How Facts Make Law II’ in Scott Hershovitz (ed.), Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin (OUP 2006) 273.
  42. Mark Greenberg, ‘How Facts Make Law’ (2004) 10 Legal Theory 157, 164.
  43. Greenberg (n XXX).
  44. Green (n XXX) 1626-1627.
  45. John Tasioulas, ‘Customary International Law and the Quest for Global Justice’ in Amanda Perreau-Saussine and James Murphy, The Nature of Customary Law (CUP 2007) 326-329.
  46. Fernando Teson, A Philosophy of International Law (Perseus 1998); Ronald Dworkin, ‘A New Philosophy for International Law’ (2013) 41(1) Philosophy & Public Affairs 2.
  47. Alex Green, Statehood as Political Community: International Law and the Emergence of New States (forthcoming, CUP 2023).
  48. Oisin Suttle, Distributive Justice and World Trade Law: A Political Theory of International Trade Regulation (CUP 2018).
  49. George Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP 2007).



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

Required knowledge: Link

Learning objectives: Understanding XY.


A. Introduction to TWAIL: Method and Movement edit

B. Points of Departure and TWAIL Trajectories edit

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

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 20th 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[1] 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.[2] 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 edit

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.[3] 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.[4] 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.[5] 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.[6]

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.[7] 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'.[8] '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'.[9] 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.[10]

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.[11]

III. History of TWAIL as a Movement edit

TWAIL as a rubric for an academic movement emerged in Harvard in 1996.[12] 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.[13] 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.[14] 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.[15]

C. TWAIL Engagements with Core International Law Doctrines edit

I. Third World Approaches to the State in International Law edit

II. Third World Approaches to the Sources of International Law edit

III. Third World Approaches to International Human Rights Law edit

IV. Third World Approaches to International Economic Law edit

D. TWAIL Methodologies edit

I. TWAIL and the Turn to History edit

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.[16] 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.[17] 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.

II. TWAIL and the Turn to Political Economy edit

III. TWAIL and Critical Scholarship on Race and Racism edit

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.

IV. Feminist TWAIL edit

V. TWAIL and 'Strategic Formalism' edit

E. Recurring and Emerging Themes in TWAIL Scholarship edit

I. The Civilising Mission and the Standard of Civilisation edit

II. Development edit

III. Good Governance edit

IV. Democracy edit

V. Transparency and Accountability of International Institutions edit

VI. Borders and Migration edit

Further Readings edit

  • Source I
  • Source II

Conclusion edit

  • Summary I
  • Summary II

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. For an in-depth engagement with the Bandung conference from a TWAIL perspective, see Luis Eslava/Michael Fakhri/Vasuki Nesiah (eds), Bandung, Global History, and International Law: critical pasts and pending futures (Cambridge University Press 2017).
  2. Vijay Prashad, The Darker Nations: A People’s History of the Third World (The New Press 2008).
  3. Usha Natarajan et al, 'Introduction: TWAIL - on praxis and the intellectual' (2016) 37 Third World Quarterly, 1946-1956, 1946.
  4. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2005) 9.
  5. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2005) 37, 56.
  6. TWAIL & Individual Responsibility 85
  7. Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press) 26.
  8. Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press) 25 et seq.
  9. Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press) 25; Cf. Peter Fitzpatrick and Patricia Tuitt, ‘Introduction’ in Peter Fitzpatrick and Patricia Tuitt (eds), Critical Beings: Race, Nation and the Global Legal Subject (London: Ashgate Press 2003), xi–xx, xi.
  10. Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press) 25.
  11. Ntina Tzouvala, Capitalism as Civilisation: A History of International Law (Cambridge University Press 2020) 1-7.
  12. Luis Eslava, TWAIL Coordinates https://criticallegalthinking.com/2019/04/02/twail-coordinates/
  13. Antony Anghie and B.S. Chimni, 'Third World Approaches to International Law and Individual Responsibility in Internal Conflicts' (2003) Chinese Journal of International Law 77, 79 et seq.
  14. Antony Anghie and B.S. Chimni, 'Third World Approaches to International Law and Individual Responsibility in Internal Conflicts' (2003) Chinese Journal of International Law 77, 82.
  15. Antony Anghie and B.S. Chimni, 'Third World Approaches to International Law and Individual Responsibility in Internal Conflicts' (2003) Chinese Journal of International Law 77, 84.
  16. https://criticallegalthinking.com/2019/04/02/twail-coordinates/
  17. B.S. Chimni, 'The Past, Present and Future of International Law: A Critical Third World Approach' (2007) 8 Melbourne Journal of International Law 499, 500.



Author: Verena Kahl/Tamsin Paige

Required knowledge: Approaches to International Law History of International Law Beneficial: Women in International Law

Learning objectives: Understanding feminist and queer approaches and their particular relevance for public international law.

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A. Introduction edit

This chapter serves as an introduction to feminist and queer theory and its particular relevance for capturing the underpinnings of public international law. One of the main goals of this contribution is therefore to point out the added value that feminist and queer approaches to international law as forms of de- and reconstruction contribute to existing schools of thought. To this end, the chapter departs from the male and heterosexual standard and a gender-biased international legal order as the common baseline for queer and feminist deconstruction. By pointing out the commonalities of both feminist and queer theory, the contribution underscores the utility and necessity of a consolidated approach. Common terms and concepts of feminist and queer theory are then connected to some of the manifestations and specific examples of feminist and queer theory in the realm of international law. Nonetheless, this chapter should not be understood as an exhaustive overview of research and practice of queer and feminist approaches to international law. Rather it provides first insights into a school of thought, which serves as a tool of deconstruction that can be applied to each area of public international law.

I. Feminist and Queer Theory as Forms of Deconstruction edit

Feminist and queer approaches form part of a diverse field of schools of thought, which 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[2] 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.[3] As a result, it reveals the existence of other competing forms of interpretation, alternative views,[4] which have been ignored, overshadowed or suppressed,[5] thereby opening the door to new possibilities and structures.[6] The concept of deconstruction therefore rejects the idea of an absolute truth or natural referent,[7] but rather searches for 'the tensions, the contradictions, the heterogeneity.'[8] In its ability to show pluralities and different options, deconstruction creates space for (ongoing) transformation and reconstruction.[9] 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.'[10] 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.[11]

II. The Male and Heterosexual Standard edit

Although neither one nor 'the one' feminist and queer approach to international law exists, all of these different approaches in the realm of feminist and queer theory share a common baseline: International law has been predominantly developed and shaped by (white, cis, heterosexual) men and has been built on the assumption that men and masculinity are the (societal) norm.[12] While this norm and, as a consequence, public international law, have largely been perceived as neutral,[13] they neglect all those categories that deviate from this standard. In this sense, it is not just women and femaleness that are excluded as 'the other'[14]. Rather, all deviations relating to sex, gender or sexuality, which are considered as different from or opposed to the norm,[15] eke out a shadowy existence as their perspectives and interests are constantly ignored and bypassed.This includes, but is not reduced to, persons identifying as women, lesbian, homosexual, bisexual, transgender or intersexual, thereby expanding categories of sex, gender and sexuality far beyond a mere binary understanding.

Advanced: Cisgender and transgender

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. 'Transgender' in turn refers to persons whose sense of gender identity does not correspond with the sex assigned at birth. [16] Building on this, the term 'cis/het', which is common in queer theory literature, refers to someone who is cisgender and heterosexual.

In essence, public international law, just like domestic law, suffers from a clear gender bias,[17] 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.'[18]

III. Commonalities of Feminist and Queer Theory edit

Since international law builds on a masculine and heterosexual standard that is confronted with a great diversity of systematically overlooked deviations, 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. Instead, 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 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.[19] In this sense, combining feminist and queer theory also means not to remain 'within the closed fields of these oppositions'[20] and thereby perpetuate the inherent hierarchy, but rather move beyond binary structures.

B. Common Terms and Concepts edit

I. Sex and Gender edit

Two main concepts, which are deeply interrelated and essential to feminist and queer theory are '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.[21]

Advanced: Gender binary

The 'gender binary' can be described as a foundational ordering principle used to classify 'human beings into two socially and biologically distinct categories: male assigned persons who are expected to identify as boys and men and perform masculinity; and female assigned persons who are expected to identify as girls and women and perform femininity.'[22]

'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.[23]

Advanced: Sex and Gender defined by the Human Rights Commission

Building on the aformentioned distinctions between sex and gender, 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.'[24]

With this in mind, the notion of 'gender' has been described as a fluid and unstable concept[25] and is often understood as a rejection of the biological determinism embodied in the concept of 'sex'.[26] 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.[27] 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.'[28] However, the same complexity applies to the oversimplified category of 'sex', as biology itself unveils the existence of a variety of sexes that go far beyond the socially constructed dualism.[29] In addition, the idea that 'sex' is a natural and immutable characteristic has been increasingly challenged,[30] for having constructed, contingent and political dimensions.[31] As a result, the distinction between sex and gender itself has been questioned.[32]

Example for a definiton of gender identity in the field of international human rights law: According to the Inter-American Court of Human Rights gender identity is defined as 'the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth. [...] Thus, [...] recognition of gender identity is necessarily linked to the idea that sex and gender should be perceived as being a part of the constructed identity that is the result of the free and autonomous decision of each person, and without this having to be subject to their genitalia.'[33]

gender identity is “the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth,”so that “recognition of gender identityis necessarily linked to the idea that sex and gender should be perceived as being part of the constructed identity that is the result of the free and autonomous decision of each and without this having to be subject to their genitalia.”

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.'[34] 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.’[35]

Example for moving beyond the binary in international law: An example for moving beyond the binary in international law is the Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism from 2009. In his report, Martin Scheinin emphasized that '[g]ender is not synonymous with women but rather encompasses the social constructions that underlie how women’s and men’s roles, functions and responsibilities, including in relation to sexual orientation and gender identity, are defined and understood.'[36]


Despite this intention to show a more inclusive and diverse picture beyond traditional understandings of masculinity and femininity,[37] 'gender' has often been and still is frequently used as a synonym for 'women',[38] also whithin the realm of public international law. A prominent example is the Convention on the Elimination of all forms of Discrimination Against Women, which in its Art. 1 and 5 in particular shows, to begin with, no real distinction between 'sex' and 'gender' at all and furthermore reveals a commitment to the traditional dualism of men/women.[39] As a consequence, the male standard becomes once more the 'normal' standard for every individual, sticking to a gender binary and hierarchy in the realm of an international project whose intention was to endorse the full humanity of women.[40] Such international protection mechanisms where women's experience is only measured against the male standard are much to the detriment of women worldwide, but particularly those of the Global South,[41] reinfocring gender and cultural essentialism through their definition of the female subject as 'victim subject'.[42]

Example for sticking to the sex and gender dualism in the context of CEDAW: Art. 1 CEDAW reads: 'For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.'[43]


Art. 5 CEDAW stipulates, inter alia, that 'States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.'[44]

Gender-based analyses have therefore to a large extent focused 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.[45]

Advanced: Women as a presumed coherent subject

Feminist scholarship has long revolved around women as their coherent subject, which presumes a common, collective and universal identity [46] and 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'.[47] 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'.[48]

In defiance of attempts in international law 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',[49] according to Brenda Cossman '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.'[50] International Law's predominant and persisting recognition of and holding on to dominant binary and oversimplified categories therefore ignores the many signs of gender and bodily diversity that have been present across centuries, continents, and cultures.[51]

Advanced: The Sex and Gender (Identity) of the State

A deconstruction of international law from a feminist and queer perspective also requires a closer look at those actors that are still considered the primary subjects of international law: States. These are - despite all differences e.g. in size, wealth, geography and power - generally viewed as monolithic sovereign, independent and equal entities without a sexed identity in international law.[52] In contrast, feminist and queer scholarship has revealed how the image of the autonomous, sovereign, protecting, power-seeking and -exerting State with clear geographical boundaries is associated with heterosexual men and maleness, while weak, invaded, colonized or failed States in need of protection are rather connected to women and femaleness, thereby creating not only shifting sexual identities of States but also corresponding power imbalances and invisibility of deviations of the 'normal' State. [53]


II. Feminist and Queer Theory edit

1. Feminism and Feminist Theory edit

Although the feminist discourse is shaped by multiple controversies and disagreement,[54] the common aim is to describe, analyze, explain, challenge and change gendered power relations in all spheres of life to achieve human liberty for all genders.[55] 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.'[56] Through the study of gender, gaining 'critical distance on existing gender arrangements'[57] becomes possible and creates space for reassessment and alteration.[58] While visible feminism and feminist theory have for a long time ignored the diversity and intersectionality of discrimination experiences suffered by women worldwide,[59] it is particularly the merit of black, revolutionary feminists, such as bell hooks,[60] Barbara Smith,[61] Patricia Hill Collins[62] and Kimberlé Crenshaw,[63] who have contributed to a holistic and more inclusive (re)definition of feminism and feminist theory. Further importance should also be assigned to indigenous feminism,[64] putting a spotlight on decolonization, indigenous souvereignty and indigenous women's rights within traditional indigenous life and culture.[65]

Advanced: Revolutioanry definitions of feminism

An important contribution to the revolutionary (re)definition of feminism was delivered by bell hooks. She defined feminism as 'the movement to end sexism, sexist exploitation, and oppression.'[66] Black feminist Barbara Smith had even earlier on referred to a more inclusive concept of feminism in contrast to restricted and exclusive approaches to feminism. According to her, 'feminism is the political theory and practice to free all women: women of color, working class women, poor women, physically challenged women, lesbians, old women. Anything less that this is not feminism, but merely female self-aggrandizement.'[67] From these definitions follows a holistic feminist approach that 'is not simply about women’s issues but is a broad-based political movement that seeks freedom for all those who are oppressed.'[68]

Advanced: Definition of Sexism

In the appendix to its Recommendation CM/Rec(2019)1 of the Committee of Ministers to member States on preventing and combating sexism the Council of Europe, the first international legal instrument to terminologically specify and combat sexism, defined sexism as '[a]ny act, gesture, visual representation, spoken or written words, practice or behaviour based upon the idea that a person or a group of persons is inferior because of their sex, which occurs in the public or private sphere, whether online or offline, with the purpose or effect of:

i. violating the inherent dignity or rights of a person or a group of persons; or

ii. resulting in physical, sexual, psychological or socio-economic harm or suffering to a person or a group of persons; or

iii. creating an intimidating, hostile, degrading, humiliating or offensive environment; or

iv. constituting a barrier to the autonomy and full realisation of human rights by a person or a group of persons; or

v. maintaining and reinforcing gender stereotypes.'[69]

Building on these redefinitions, nowadays many if not most feminists seek to embrace the diversity of voices in the feminist discourse. 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 seeking '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.'[70]

2. Feminist Approaches to International Law edit

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.'[71] In this sense, feminist approaches to international law seek to lift the veil of an international legal order perceived as neutral and objective and reveal 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.[72] They therefore continue to demonstrate that international law is a 'thoroughly gendered system'.[73] 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.[74] 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.'[75] Importantly, voices in feminist approaches to international law have diversified, with many leading icons stemming from the Global South.[76]

3. Queerness and Queer Theory edit

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.[77] 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.[78] 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 underpin the subject of enquiry and the normative approach to the thing that is being queered.[79] 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 edit

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 'cis/het' standard, particularly illustrated in the granting of equal rights and prohibition of discrimination on the basis of sexuality and sexual identity.[80] In addition, Dianne Otto understands 'queering of international law' more broadly than traditional approaches of norm inclusion.[81] 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.[82] 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.'[83] Quite similarly to the deconstrutionist approach of feminism, 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.'[84] Queering international law therefore also means to uncover the different layers of presumed 'normality' in international law and beyond: When heterosexuality is seen as the preferred, natural, normal form of sexuality, it not only shapes how society considers '"normal" interpersonal and familial relationships', but it also forms the (presumed) basis for our perception of community in general and thereby dictates our understanding of 'all forms of "normal" community, including that encompassed by the "normal" nation-state, international law's primary subject.'[85] In essence, queer approaches to international law unveil how international law 'provides a conduit for the micromanagement and "disciplining'' of everyday lives, including sexual pleasure, despite its many rules purporting to leave these matters in the domestic realm of jurisdiction.'[86]

Example for Queering International Law: The International Bill of Gender Rights as an expression of human and civil rights from a gender perspective is an important early momentum of queering international law. The Bill was first adopted in 1993 by the International Conference on Transgender Law and Employment Policy and subsequently reviewed and amended. It contains ten rights, which are framed as universal rights to be 'claimed and exercised by every human being regardless of their sex or gender',[87] but which still reflect the denial and continuous infringement of human rights of those persons that define themselves or are perceived as transgender.[88]

The rights included in the International Bill of Gender Rights are:

  • The Right To Define Gender Identity
  • The Right to Free Expression of Gender Identity
  • The Right of Access to Gendered Space and Participation in Gendered Activity
  • The Right to Control and Change One's Own Body
  • The Right to Competent Medical and Professional Care
  • The Right to Freedom From Involuntary Psychiatric Diagnosis and Treatment
  • The Right to Sexual Expression
  • The Right to Form Committed, Loving Relationships and Enter Into Marital Contracts
  • The Right to Conceive, Bear, or Adopt Children
  • The Right to Nurture and Have Custody of Children and to Exercise Parental Capacity

Example for Queering International Law: An important outcome of queering international law are the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity, which were developed and adopted in 2006 and supplemented in 2017 (Yogyakarta Principles plus 10) by leading human rights experts reacting to and putting a spotlight on a continuous global pattern of human rights violations that target persons based on their actual or perceived sexual orientation or gender identity. It is important to note, however, that these principles have also been criticized for ignoring social context and relying on biology and heteronormative understandings of family.[89]

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

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 issue, but respond to it by exploring possible solutions.[90] 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'[91] and have mostly ignored the dialogue commenced by queer approaches to international law.[92] Instead, feminist approaches have – intentionally or unintentionally, for pragmatic or other reasons[93] – largely built on the heteronormativity and cisgenderism inherent in the structures 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.'[94] In contrast, moving beyond dualism and asymmetry would allow 'to tell a story of marginality that has not yet been told’,[95] drawing an inclusive picture of discriminatory experiences without 'losing the precarious spaces that have been carved out for addressing women’s human rights abuses.'[96]

III. Structural Discrimination edit

During the last two decades, international human rights institutions have increasingly made reference to the phenomenon of structural injustices through the lens of the concept of structural discrimination.[97] 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.[98] 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.[99] 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.[100] Discrimination is thereby introduced into often unconscious societal routines and patterns of attitudes and behavior that create and maintain discriminatory practice.[101] 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.[102] As Pincus highlights the 'key element in structural discrimination is not the intent but the effect of keeping minority groups in a subordinate position.'[103] 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.[104] 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.'[105]

There are multiple forms of structural discrimination present in the realm of international law that often, but not only, mirror corresponding patterns at the domestic level. The invisibility and underrepresentation of persons belonging to or identifying as a different than the cis male gender in international adjudicating, monitoring and law-developing institutions,[106] structural gender-based violence[107] or persisting racism in international law (education)[108] are some of the multiple expressions of structural discrimination in the international legal sphere, which are closely linked but not always analized in their connection to intersectionality and complex forms of discrimination.[109] As a consequence, there is a need for more investigation and quantative as well as qualitative data on structural discrimination in international law that also goes beyond monolithic categories of their subjects, however, without ignoring the significant hurdles intersectional research faces.[110]

Advanced: Distinction between structural and institutional discrimination

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.'[111] 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.[112] It is also important to point out that women are much affected by structural and institutional discrimination even though they do not fit into the category of minority.


IV. Intersectionality edit

While bell hooks had already described interlocking webs of oppression beforehand,[113] it was Kimberlé Crenshaw who coined and finally 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 respective group.[114] 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,[115] namely white, Western, heterosexual, middle- and upper-class women.[116] 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.'[117] 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.'[118] As a result, 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, race, sexual orientation, class, age, disability or belonging to an indigenous community, just to name a few, overlap.

Advanced: Sexual orientation and heteronormativity

‘Sexual orientation’ is different from the terms ‘sex’ and 'gender' in that it makes reference to the type of person to whom one is attracted. The Yogyakarta Principles define sexual orientation as referring 'to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.'

While sexual orientation may be perceived as an open term encompassing a plurality of sexual attraction and experiences, heteronormativity, in turn, as a social hegemonial norm assumes that heterosexuality is the normal, natural and preferred mode of sexual orientation to the exclusion of its many other forms. Building on this assumption, heteronormativity further presupposes that an individual's biological sex, sexuality, gender identity, and gender roles are aligned.[119]


The Bejing Declaration as an outcome of the Fourth World Conference of Women in 1995 can be seen as an early beginning of intersectionality feeding into international law.[120] Both concept and terminology of intersectionality found their way into international documents particularly at the intersection of gender and race,[121] examples of which are the adoption of the Durban Declaration and Action Programme of the World Conference Against Racism, Racial Discrimination, Xenophobia Related Intolerance in 2001[122] and General Recommendation No. 25 of the Committee on the Elimination of Racial Discrimination.[123] Also Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) has endorsed intersectionality in several of its General Recommendations.[124] In the following, intersectionality as a feminist approach has therefore also come to play a vital role in the adjudication of international human rights law, particularly with regard to violations of anti-discrimination norms, and has consequently found its way into the jurisprudence of regional human rights monitoring bodies.[125]

Example for Intersectionality in Regional Human Rights Systems: Intersectionality has been regularly used in the jurisprudence of the Inter-American Court of Human Rights to assess and unveil complex situations of vulnerability and discrimination. In Gonzalez Lluy v. Ecuador, the Court held that 'numerous factors of [Thalías] vulnerability and risk of discrimination intersected that were associated with condition as a minor, a female, a person living in poverty, and a person living with HIV. The discrimination [...] also arose from a specific form of discrimination that resulted from the intersection of those factors; in other words, if one of those factors had not existed, the discrimination would have been different.'[126] In this sense, the Court also emphasized that intersecionality is to be distinguishied from additive, cumulative or multiple discrimination.[127]


In the African Human Rights System, the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples' Rights deserve special mentioning when it comes to the concept of intersectionality. Therein, the African Commission on Human and Peoples' Rights (ACHPR) underscored that 'States should recognise and take steps to combat intersectional discrimination based on a combination of (but not limited to) the following grounds: sex/gender, race, ethnicity, language, religion, political and other opinion, sexuality, national or social origin, property, birth, age, disability, marital, refugee, migrant and/or other status.' [128]


C. Problems that Feminist and Queer Theory Seeks to Address edit

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.

Example for Key People in Feminist and Queer Theory in International Law: 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, Sylvia Tamale, Vasuki Nesiah, Usha Natarajan, Vidya Kumar,Aileen Moreton-Robinson, Rosalva Aída Hernández Castillo, Johanna Bond

I. Feminist Engagement with International Law edit

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;[129] however, academic scholarship from the feminist tradition did not 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.[130] 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),[131] 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.”[132]

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).[133] It is also evident in fantastic programs such as the Gender Legislative Index,[134] 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, rather than on the cultural social structures, such as the heteropatriarchy, that cause inequality.

The outcome of this focus on women as subjects rather than social structures when conducting feminist interventions in international law lends results in broadly 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.[135] 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).[136] 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 criticised as ‘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.[137] 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 plagued 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.[138]


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).[139] 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.[140] 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;[141] however, even those criticising this work acknowledge that it’s an improvement for women than when they were being utterly ignored.

II. How Queer Theory in International Law Differs from Feminism edit

Queer theory grew out of third wave feminism, in particular the work of Butler and Sedgwick,[142] 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.[143] 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.[144]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[145] 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 an 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’.[146] 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 ad