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

Published on February 9, 2018        Author: 

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. Read the rest of this entry…