Can International Law Be More International?

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). 

In her monograph Anthea Roberts has drawn a comprehensive portrait of International Law – she has intentionally limited her study to the current, mid 2010s period of time, refraining from diving too deep into history and from speculations on future developments. Now as a real artist the author steps back from its masterpiece and lets the audience draw their own conclusions, check the accuracy of results and data in accordance with their knowledge, and compare a presented image with their own perception of the scene.

In my contribution I try to juxtapose images and impressions collected from a reading of Anthea Roberts’ monograph with my own, and reflect on possible forces which might be able to make International Law ‘more international’.

Visible and invisible curtains and walls

For me the main features of the portrait of contemporary International Law drawn by Anthea Roberts seem to be best defined by notions, such as ‘curtains’ and ‘walls’. ‘Iron curtain’ as an expression is linked to the system of fire protection used in the theatres and later on, thank to Sir Winston Churchill, it became a famous political idiom describing the system of self-isolation used by the USSR to preserve and separate the socialist world from the outside influence. In August 1961 an already existing ‘iron curtain’ between the communist East and capitalist West materialized in the construction of the Berlin Wall. In 1963 when President John Kennedy of the United States visited West Berlin, even the Brandenburg Gate had been draped with a curtain that did not enable inhabitants of East Berlin to see him.

This ‘iron curtain’ was a comprehensive political and legal regime of restrictions and totalitarian control over the all spheres of social life. It is not surprising that Professor Grigory Tunkin, one of the most well-known Soviet international lawyers (who headed the Legal Department of the Ministry for Foreign Affairs, was a member of the ILC, the Institut de Droit international and the Head of the Chair for International Law at the Moscow State University) described in his diary how he took any opportunity to work in libraries in the Hague, Geneva and New York in order to introduce ‘western’ approaches to the Soviet audience, being fully aware of his important and unique transmitting mission.

Of course, all these stories have for many years belonged to history. The Berlin Wall fell in October 1989, the Soviet Union dissolved in 1991. We are now living in a different reality of globalization, accessibility of intellectual resources, open or at least relatively open borders, not speaking about the ubiquitous Internet. But despite all these changes the current picture of International Law is dramatically full of borders. However, those borders are not enshrined as inevitable constraints, which as a result of implementation and application of universal norms in almost two hundred different national legal systems push us to justify the existence of Comparative International Law. No, these are ‘curtains’ and ‘walls’ in the professional community, which make a ‘college of international lawyers’ ‘divisible’ (Anthea Roberts 51 et sq.).

We can dispute, how far from the truth Oscar Schachter was when in 1977 he wrote about ‘invisible college of international lawyers’, but what makes the division in international legal academia, so thoroughly traced by Anthea Roberts, so strong now? The reasons thereof comprise, but are not exhausted by historical (i.e. empire, heritage or ideological infighting) or geopolitical precursors, because roots can be also seen in an enormous expansion of the substantive field of International Law and proliferation of its institutions, which led to a challenging shift of education of International lawyers from being rather elitist to a mass one.

What shapes our ‘divided’ communities is where we study, which languages we speak, which publications we read and use in our research and teaching, in which journals and in which languages we publish (Anthea Roberts 51-128). Borders evolved between these communities should be better qualified as borders not of International Law itself, but of its discipline, which in many ways influences and shapes the law. So it is much more about “how we think about law” than “how the law is done” (see Andrea Bianchi 6-8).

It is a tragedy for the discipline when the presence of these borders is not even realized or perceived. It may be because of an inert or ‘traditional’ thinking or frames of the language, which just does not allow us to look ‘outside’. Another situation is when the presence of the borders are perceived, but due to either imperial incentives, or due to a feeling of being a strong (or the sole strongest) party in the game, it is enough to formally pretend to play on an equal footing. And, finally, a third case: these borders can be used as a saving remedy. Just imagine, how many theses have been successfully defended in different countries because it is enough to ground that an author was the first to approach this topic in “National legal thought”. How many professors have maintained their chairs almost life-long, despite the fact that they knew no foreign language? How many articles have been accepted since it was not necessary to cite foreign sources? And this is not a speculative ‘what-if’, but a striking reality in some countries.

If the failure to perceive boundaries leads to a ‘naïve provincialism’, a protective usage of them should be described as a ‘comfortable provincialism’. Anyway, in all these scenarios of not listening and not being heard degradation of research and teaching of International Law is unavoidable. However, as a positive forecast, these processes would also lead to a renaissance of legal thought in a state or even in a region. A sole particular question relevant for a particular individual living in the here and now is how long would it take until these changes come? A more complicated case is an intentional not listening scenario based on abuse of a powerful position of a state or states. How could this imperial position be shifted?

Searching for Driving Forces for Internationalization of the Discipline

So, which driving forces are able to stir the pot and dissolve the boundaries? Would reading of Anthea Roberts’ book and awareness of existing ‘curtains’ and ‘walls’ alone change the professional field so intensively that as Martti Koskenniemi put it in his blurb to this monograph ‘nothing …will be quite the same’?

Taking into account that driving forces for these changes can be different by their nature (epistemic, economical, political), by subjects embodying them (global, regional and national, governmental and non-governmental etc.), I will confine myself to the following three.

Firstly, in our discussions and search for an appropriate scientific method or methods of International Law (AJIL Symposium on Method in International Law, ESIL Research Forum and a recently published book ‘International Law as a Profession’) we should be, at least, united in depicting criteria for these methods or ‘scientific values’ (Anne Orford 372), which alongside with rationality, consistency and provability comprise objectivity. Realization of objectivity (being different from universality) as an element of a scientific method would require from every researcher to realize and overcome any individual, institutional and national limits he or she might be bound by when analysing the substantive field.

Secondly, it should be admitted, that the piercing of the walls with different speeds in different countries is already going on, as almost all states are more or less involved in proliferating dispute resolution systems which, from one side require qualified lawyers, and from the other produces judgments which are to be implemented or, at least, understood at the national level. Thus, such substantive fields as human rights, international trade and investments are in avant-garde of this process. This is rather a pragmatic and utilitarian articulation of forces, which might shift a governmental position, although their role is limited, especially taking into account that a human rights sphere might have a ‘dangerous’ potential in eyes of a non-democratic government being by definition double-edged.

Thirdly, competiveness among institutions of higher education (which in varying proportions can comprise both commercial and reputational aims) would push universities to hire foreign specialists, introduce courses or even educational programs in English and support publications in international peer-reviewed journals. These processes, though they may be fairly criticized for excessive reliance on administrative tools, are relevant for ‘internationalization’ of International law, especially in states pushing their best universities to strengthen their positions in the well-recognized worldwide rankings. Although, this ‘race’ can result in a distortion of the educational space, when a limited ‘exported’ part will have almost no connections with a not-changed domestic one.

Awareness about capacities and limits of all possible forces able to push International Law to be ‘more international’ makes it obvious that it is, in the first line, our professional conscience and realization of International Law as a scientific discipline that regardless of economic and political constellations in a particular state or region would even require from us to care about ‘internationality’ as a sine qua non element of methodology. It is pertinent not to wait until the changes will come from above, but start with feasible steps: with our own research, with our students and with our plans of future scientific events and collective monographs, always asking ourselves: ‘Do I realize which boundaries surround me in the discipline and am I, at least, trying to act above them?’

Thus, it is in our own hands to make the monograph written by Anthea Roberts to change the ‘world of International law’.