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Is International Law International? Continuing the Conversation

Published on February 9, 2018        Author: 
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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). 

In the movie Shadowlands, the character C. S. Lewis says, “We read to know that we’re not alone.” For me, perhaps it is also true to say, “I write to know that I am not alone.” Implicit in Is International Law International? is a series of questions: Have you seen what I have seen? Do you analyze it in the same way? If not, what has your experience been and what do you make of that? How and why are your reactions similar to or different from mine? And what does that mean regarding whether international law is, should be and can be international?

I want to thank EJIL: Talk! and Opinio Juris for hosting, and the contributors for engaging in, this sort of dialogue. Two common themes of the contributions are that my book represents the start of a conversation rather than the final word and that it provides a platform for future research. I agree. My book is a big-picture macrosketch based on detailed microobservations that seeks to challenge existing understandings. A lot of details need to completed, analyses tested, additional points noted and implications thought through. In the spirit of continuing this exchange, I offer some reflections below.

Before doing so, I wanted to note that, reading the comments, I was struck once more by how much we approach international law from our particular national perspectives. Whether it is Vera Rusinova reflecting on international law through the iron curtain, Hélène Ruiz Fabri drawing connections with debates in the French literature, Marko Milanovic considering the differences he has experienced in the US and UK academies, or Bing Bing Jia providing insights into Chinese international law textbooks, each of us brings our biography into play when analyzing our field. Of course, this observation is part of the point of my book. But it also means that we won’t be able to access the richness of this variety, in both sources and perspectives, unless we diversify our interactions and networks. Read the rest of this entry…

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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: 
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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. Read the rest of this entry…

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Can International Law Be More International?

Published on February 8, 2018        Author: 
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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). 

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. Read the rest of this entry…

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From Babel to Esperanto and Back Again: The Fate of International Law (or of International Lawyers?)

Published on February 8, 2018        Author: 
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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). 

While I’ve been reading, I have wondered about the exact nature of Anthea Roberts’ book. A sociological inquiry? A manifesto? A plea? Against arrogance? Against a new Empire? For comparison? For pluralism? Maybe a bit of all this? In any case, it is a polite call for lucidity. It seems the author has tried to confirm some hunches she picked up along the way.

In one sense, writing such a book was a risky enterprise. Contrary to what the title might suggest, Anthea Roberts writes less about international law than about international lawyers, who are in constant danger of thinking of international law in a parochial way while claiming its universality. Indeed this book might be a good way to displease many people, although everyone has the choice between identifying with the tendencies she uncovers or considering themselves an exception. But past that, Anthea Roberts comes out with some statements which can be felt as more or less dreadful, depending on one’s situation. She does not propose a miracle cure but at least a realization. To this extent, her approach is not a pessimistic one.

Admittedly, it is possible to criticize this or that angle of the study, such as the choice – even motivated – to focus on the P5 or the presentation of the specifics of a domestic system which does not seem perfectly understood, or else the delimitation of what is “western”. But what I found most interesting is the way in which Anthea Roberts was able to present an analysis which turns out to be very political, as a project as well as in its outcome. Read the rest of this entry…

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The Parochialism of Western Cosmopolitanism in a Competitive World Order

Published on February 7, 2018        Author: 
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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). 

We are familiar with the question: Is international law law? In my new book, I ask instead: Is international law international? Not particularly, is my answer—at least, not in the way that it tends to be conceptualized by international law academics in different states and in the international law textbooks and casebooks that they use.

When asked to reflect on the professional community of international lawyers, Oscar Schachter memorably called it an “invisible college” whose members were “dispersed throughout the world” yet “engaged in a continuous process of communication and collaboration.” But in rendering that college visible, I find that international lawyers may be better understood as constituting a “divisible college” whose members hail from different states and regions and who often form separate (though overlapping) communities with their own understandings and approaches.

In tracing these divisions and considering their consequences, I make three arguments. First, international lawyers are often subject to differences in their incoming influences and outgoing spheres of influence in ways that affect how they understand and approach international law. Second, actors, materials and approaches from some states and regions have come to dominate certain transnational flows and forums in ways that make them disproportionately instrumental in constructing the “international.” Third, existing understandings of the field are likely to be disrupted by factors such as changes in geopolitical power, making it increasingly important for international lawyers to understand the perspectives of those from unlike-minded states.

My book invites international lawyers to look in the mirror to discern and become more reflective about their blind spots and parochialism. It encourages international lawyers to recognize and speak openly about some of the socializing factors, incentives and power dynamics that shape their divisible college. It suggests that they try to see the field through the eyes of others and to diversify their sources, networks and perspectives. This call is particularly appropriate for Western international lawyers—myself included—who often study, work and publish in a Western bubble, which makes it harder for us to understand and adjust to the newly emerging competitive world order. Read the rest of this entry…

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Joint Symposium with Opinio Juris on Anthea Roberts’ Is International Law International?

Published on February 7, 2018        Author: 
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We are delighted to announce that over the next few days we will be co-hosting with Opinio Juris a discussion of our contributing editor, Anthea Roberts’ new and prize-winning book Is International Law International? (OUP, 2017). The book has recently been awarded the American Society of International Law’s  2018 Certificate of Merit for “Preeminent Contribution to Creative Scholarship” and we extend our congratulations to Anthea! As the ASIL Book Awards Committee states:

 

“In this book, Professor Roberts takes us along as she chases the title’s question down an international law rabbit-hole to reveal a topsy-turvy world in which international law is parochial and the invisible college is rendered visible. Roberts turns a beguilingly simple question into a globe-trotting, multi-method quest for a map of international law’s players and meanings. Simultaneously irreverent and serious-minded, Roberts develops an original research agenda that takes her and the reader through the migratory flows of international lawyers around the world, the divergent methods through which they are educated, and the different professional tracks through which they are socialized. The book does not just dissolve international law’s myths of universality; it is a nascent sociology of the field of international law and the beginning of a new field of comparative international law. In an era in which Western dominance over international law no longer looks certain, this book provides the tools for a more nuanced understanding of international law’s politics, revealing the deeper meanings and stakes of current debates.”

To discuss the book’s findings and main claims, EJIL:Talk! and Opinio Juris have assembled a distinguished group of international lawyers from all over the world. The discussants on EJIL:Talk! will be Professors Hélène Ruiz Fabri (Max Planck Institute Luxembourg for Procedural Law) , Vera Rusinova (National Research University ‘The Higher School of Economics’, Moscow), Bing Bing Jia (Tsingua University, Beijing). On Opinio Juris, the discussants will be Professors Paul Stephan (University of Virginia), Julian Ku (Hofstra Law School) and Marko Milanovic (University of Nottingham). The symposium will open with a post later today by Anthea introducing her book. We are grateful to all of them for taking part in this discussion. Readers are invited to join the discussion with comments on the posts.

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Concluding Response from Professor Chimni: International Law and World Order

Published on December 29, 2017        Author: 
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Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

It is a great honor to have a set of responses to the second edition of my book International Law and World Order: A Critique of Contemporary Approaches (ILWO). What is more these represent empathetic and generous readings of my work. Yet the responders have not shied away from asking some hard questions. It has given me an opportunity to clarify my views on many issues. Three of the responses are devoted to the chapter on the Integrated Marxist Approach to International Law (IMAIL) read in conjunction with the introductory chapter which outlines the theoretical framework of the book. One contribution comments on the chapter on feminist approaches to international law (FtAIL). The responses also touch on other matters that include the reason for my detailed consideration of the New Haven approach. Instead of responding separately to each individual response I make observations on some themes and questions that the responders helpfully flag. Since this is not the occasion to offer a detailed response I will satisfy myself with some bare observations. These are made under the following heads:

Structure of the Book

Theoretical Issues

International Rule of Law

Alternative Futures

Structure of the book

For those who have not had the occasion to peruse the book it may help to note that it has chosen to articulate IMAIL through a critique of the principal contemporary approaches to international law. Only some fundamental themes, ideas and issues pertaining to IMAIL are dealt with in the chapter devoted to it. I mention this because the structure of the book has determined the way IMAIL has been elaborated. It has left certain gaps in the book that can be addressed only by a direct and systematic account of IMAIL.

The reason for writing the book in the form of a critique of contemporary approaches is that it was important to position IMAIL vis-à-vis others to showcase its relevance and strengths. The same response goes to the question as to why a chapter has been devoted to the New Haven approach to international law. The policy oriented approach is among the few that offer a systematic and comprehensive account of international law. The New Haven approach has also been presented as a counter narrative to the Marxist approach. It is no accident that Michael Reisman compares the friendship of Myres McDougal and Harold Lasswell to that of Karl Marx and Frederick Engels. A critical engagement with it helps to contrast and pinpoint the relative superiority of IMAIL. Read the rest of this entry…

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Imperialism, Commodification and Emancipation in International Law and World Order

Published on December 29, 2017        Author: 
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Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

Marxism and Third Worldism

B.S. Chimni’s work sits at an important intersection of international legal theory. It is most readily identifiable as falling within the Third World Approaches to International Law (TWAIL) movement: adopting the perspective of the Global South, and foregrounding the role of imperialism. Simultaneously, with its focus on class, production and global capitalism, his work is explicitly Marxist. This combination harkens back to an older Marxist Third Worldism—exemplified by Frantz Fanon, Amílcar Cabral and Walter Rodney.

For Chimni, his position is not exceptional. He goes so far to say that his “integrated Marxist approach” to international law, is TWAIL (pp. 14-18). Whilst this is true to a degree—TWAIL is a broad church—it underplays the degree to which Chimni’s Marxism is distinctive within TWAIL.

It is for this reason that a new edition of International Law and World Order is so welcome. Having been out of print for a number of years, readers eager for Chimni’s distinctive perspective were reduced to sharing samizdat-style photocopies. Importantly, this is not simply a re-print. Chimni has revisited his earlier formulations and engaged with a wider range of thinkers. Particularly important is Chimni response to China Miéville’s Between Equal Rights: A Marxist Theory of International Law (BER).

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Reading Chimni’s International Law and World Order: The Question of Feminism

Published on December 28, 2017        Author: 
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Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

In 1993, Professor B.S. Chimni published what Richard Falk described as the “persuasive rehabilitation of Marxist thought as the foundation for a progressive theory of international law”. Almost twenty-five years later, the second edition of International Law and World Order: A Critique of Contemporary Approaches offers us valuable insights not only into the evolution of Chimni’s thought, but also into the evolution of the discipline. Indeed, the structure and the sheer size of the second edition is telling of the flourishing state of heterodox approaches to international law. It is no coincidence that Chimni felt the need to add two new, lengthy chapters on the New Approaches to International Law (NAIL, which he sees as exemplified in the writings of David Kennedy and Martti Koskenniemi, and on Feminist Approaches to International Law (FtAIL), where he focuses primarily on the work of Christine Chinkin and Hilary Charlesworth, and particularly their co-authored, ground-breaking book, The Boundaries of International Law: A Feminist Analysis. Perhaps more fundamentally, when articulating his own Integrated Marxist Approach to International Law (IMAIL), the author gestures toward the need to integrate class, gender and race for a critical project in international law. In this respect, the book at hand does not simply offer an overview of the field, but it also registers and responds to relevant discussions (see here and here) about race, gender and class that are taking place in leftist movements and parties around the world. This is a refreshing development in its own right, since for the best part of the last twenty years references to civil society in international law revolved around Western(ised) and professionalised NGOs (see here and here).

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B. S. Chimni’s “Relatively Autonomous” International Law

Published on December 27, 2017        Author: 
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Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

The first edition of B. S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches appeared in 1993, only a couple of years after the Soviet Union’s collapse and at a time when critical and feminist approaches to international law had only just begun to make their presence felt. This was a period when only a small handful of prominent international legal theorists self-identified as Marxists—and when few jurists from the “Third World” aside from Georges Abi-Saab and Mohammed Bedjaoui were read consistently in the West. Published in New Delhi and armed with a preface from Richard Falk, International Law and World Order was no ordinary contribution to international legal scholarship. Chimni’s aim was nothing less than the reconstruction of international legal theory, a project he undertook by way of sustained examination of a number of competing perspectives, from that of Hans Morgenthau to that of Grigory Tunkin.

The second edition offers the most detailed and systematic analysis of international law from a Marxist standpoint that is currently available. Enormously ambitious in scale and reach, it updates, revises, and enlarges the first edition, sweeping across a range of substantive topics and discussing a variety of different approaches to international law and international legal theory. While the first edition had its roots in Chimni’s early engagement with the “New Haven School” (hence the title of the book, which alludes to both Falk’s work and the “world public order” models espoused by Myres McDougal, Harold Lasswell, and Michael Reisman), the second edition deals at length with feminist international legal scholarship and the work of David Kennedy and Martti Koskenniemi as part of a broader effort to outline a new Marxist theory of international law, one that integrates insights from socialist feminism and postcolonial studies while absorbing the lessons of the indeterminacy debates of the 1970s, 1980s, and 1990s.

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