A Word on the Comparative Approach of International Law and a Proposed Direction for Chinese Textbooks of International Law

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This post is part of the Joint Symposium that we are co-hosting with Opinio Juris on Anthea Roberts’ new book Is International Law International? (OUP, 2017). 

Professor Roberts’s thought-provoking book prompts many questions. My preliminary thoughts consist of two strands: one concerning the comparative approach endorsed in the book with regard to identifying similarities and differences in national and regional approaches and seeking to understand why and when these occur (Roberts, p. 33); and the other, concerning Chinese textbooks on the subject of international law. It is presumed that the word “approach” (ibid, p. 36) in this context chiefly refers to that of states, rather than that of academics and textbooks written in those states, unless the approach taken in the latter coincides with that in the former. Such coincidence, it is submitted, requires the adoption by textbook writers of a practice-centred methodology which, however, may not be prevalent at all law schools and at all times. Where the coincidence does not exist, the textbooks could be unhelpful in explaining the reasons underpinning the approach of the country, due to the proverbial gulf between practice and academia that exists in many countries. Such textbooks may never become more than attempts at second guessing of the approach of the country.

The Comparative Approach

The wise call for international lawyers to become “more humble, open and reflexive in their engagement with international law” by adopting the comparative international law approach (ibid., p. 325), is sounded after an in-depth survey of the works of a select group of lawyers, academic or practising, of the five permanent member states of the UNSC (“Big Five countries”), sometimes based on direct contact with some of those lawyers.

I wish to make four general points, with the caveat that, although these points may have been touched upon in the book, further reflection is warranted from the reader’s perspective due to their importance.

First, resort to the comparative approach to law-making in this field might not be different in effect from, for instance, the exercise of the International Court of Justice (ICJ) in finding and applying international custom or “general principles of law recognised by civilized nations”, under Article 38 of the Statute of the International Court of Justice (ICJ Statute). On the one hand, in the formation of customary law, a comparison of national approaches—in the form of state practice—is integral to the evaluation of whether and how the rule is formed, by or among which states, and what it is meant to regulate. That exercise would involve consideration of different national or localised proclivities (eg, Xue HQ, “Chinese Contemporary Perspectives on International Law”, Recueil des cours, vol. 355 (2011) 40, p. 53). On the other hand, as the general principles of law under Article 38 are regarded as rules of international law to be applied in a given case, the comparative approach, whereby they are distilled from different national laws, seems to have been around for a long time (H. Lauterpacht, Private Sources and Analogies of International Law, Longmans, Green and Co., 1927, pp. 69-70; F. A. Mann, “Reflection on a Commercial Law of Nations”, 33 British Yearbook of International Law (1957) 20, 34-39, esp. 36). The Erdemović case before the ICTY (Case No. IT-96-22-A, Appeals Chamber, Judgment of 7 Oct. 1997) was a relatively recent example of this approach. Controversial as the majority decision might be on the issue of duress in international criminal proceedings, the underlying research into the legal systems of various countries in relation to the issue was not–especially considering that, in that case, all of the appellate judges used the research to form their (diverse) opinions. On a general level, recourse to the comparative approach is presumably aimed at finding “correct” solutions to legal issues (Roberts, p. 22). However, the comparative international law approach may, for now, bring forth a result which could equally be reached by operation of the existing doctrine of sources of international law, embodied in the provision of Article 38 of the ICJ Statute.

There is, secondly, a point with regard to the focus on the academics and textbooks of the Big Five countries. Can a comparison of them really lead to a better understanding of what is considered to be international law for each of those countries, not to mention other members of the international community (this being said in view of the generality of certain unanswered questions raised: ibid., pp. 321-322)? Traditional ways of law-making by treaty and custom in this field at least involve the great majority of States in the world, and the word “international” is apt to describe the legal order thus created by them. If the perception of that legal order’s rules is built on the works of a select group of international lawyers from the five countries, could the rules so stated or asserted by the lawyers be generally accepted as authoritative (and international)? Moreover, the focus mentioned above might not account for the role played by lawyers of other countries. Furthermore, while recognising the fact that the influence of western-trained lawyers in general and of those of the UK, the US and France in particular, has been considerable in this field, there may be a lingering doubt as to whether such a training itself could sway judgement of non-western lawyers involved in diplomatic negotiations, judicial proceedings, or teaching and research in non-western countries’ academies. It should also be noted that there is a divide between academia and practice even in the Big Five countries, with perhaps the exception of the US (ibid., pp. 110-124). This divide raises a question as to whether the select group of lawyers can accurately represent the practice of their own countries in textbooks, considering that their views are not only personal, but are also likely to be rather detached from the real-time action of government lawyers in upholding national interest by means of international law. If so, the textbooks, updated only at intervals of every several years, may not capture the cause or rationale of national approaches that constantly evolve; on the contrary, they could be misleading, if not updated, for a foreign lawyer who seeks to find out about the true legal reasons in support of a national approach in a particular event–say, the Russian approach to the issue of Crimea.

Thirdly, the comparative approach would require language skills, as has been noted copiously (ibid., pp. 92-104;260-272). It seems that to master even the four languages of Chinese, English, French, and Russian for just the purpose of writing a legal opinion would be no mean feat, and the chances of having a sizable pool of lawyers of this calibre are slim, based on this reader’s personal experience. Even if that level of language skills could be managed, the lawyers of that category might still have to contend with the understanding of textbooks in German, Arabic, Italian, Spanish, etc. How many languages would need to be mastered for a truly comparative approach? The reality, as observed in the book, is that most of the international lawyers of the Big Five countries publish in their native language as a matter of course, and with that, the comparative approach, even in truncated form of relying on two or three languages to teach and research, would have little luck to be adopted in their law schools.

Fourthly, as a personal view, there is no necessary link between a particular language and a type of understanding of international law concepts or a national approach. It is the substance of the national approach that is controlling. Language is a medium whereby the approach is described. For instance, the English and French languages, even mastered to a level equal to that of those who speak it as a mother tongue, may easily be used to expound values or perspectives that are neither Anglo-Saxon nor French.

Chinese Textbooks on International Law

The book has highlighted some general features of the Chinese academia in this field (for instance, ibid., pp. 33, 156). Without wishing to comment on all of its findings in this regard, three points are raised to stimulate further discussion.

First, there are different understandings of a “treatise-like” textbook (ibid., p. 33), as opposed to “books of cases and materials”, since it may not be easy to agree on a common standard for a treatise. There are several foreign textbooks that are, in my view, treatises, widely referenced in Chinese law schools (ibid., p. 174). But there are also numerous Chinese textbooks which, on a cursory account I did a decade ago, stood at over two dozens and have since surpassed 30, and which do not treat the subject of international law in the same way that Oppenheim’s International Law or Shaw’s International Law does, in terms of substance and style. Which genre will in future dominate in Chinese law schools would be worth looking at.

Secondly, reliance on case law is not necessarily symptomatic of a “westernized” style. Public international law has its vast repertory of cases delivered by international courts and tribunals, as well as those by domestic courts and tribunals applying international law, with the decisions of the ICJ, with its diverse and representative Bench, being as authoritative as it gets for the determination of rules of international law. This fact has not been lost on Chinese international lawyers, even though the textbook writers among them often tend to be sparing in referencing case law.

Thirdly, for all the splendour of works such as Oppenheim’s International Law, which has inspired two leading textbooks–both chiefly edited by the late Judge Wang Tieya–for Chinese law schools (ibid., pp. 140, 160), it may be time for Chinese textbooks to move on with times. This moderate call for adjustment in substance and style should come as no surprise, in that even teachings of the most highly qualified publicists, to use the expression of Article 38 of the ICJ Statute, may become rusty in the fullness of time, which point is proved by the need for new editions or revisions that often span decades. To cling to a classical version of international law reveals a great deal of deference to tradition but also quickly results in stagnation. Influential ideas in the history of international law need to be re-examined and re-invented in the light of contemporary conditions to remain relevant to the fast changing geopolitical landscape of today’s world. For Chinese lawyers, a fair share of treatment of contemporary Chinese practice should also be more readily found in their future textbooks. Indeed, from hindsight, it seems that what secures the vaunted position in the Chinese academia of Oppenheim’s treatise and Brownlie’s Principles may be their practice-centred methodology that acknowledges the importance of comprehensive proof, legal reasoning, and of course, original thinking. Textbooks only introducing others’ views or summarising points for exam purposes can neither generate nor sustain interests of the targeted readership–whose enthusiasm determines the longevity and popularity of the discipline in national law schools; nor can they bridge the gulf with practice, thus being unable to claim a role in the clarification of a state’s approach to international law.

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