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Home Archive for category "Study of International Law" (Page 3)

The Parochialism of Western Cosmopolitanism in a Competitive World Order

Published on February 7, 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). 

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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Concluding Response from Professor Chimni: International Law and World Order

Published on December 29, 2017        Author: 

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: 

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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A Marxism for International Law

Published on December 28, 2017        Author: 

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.

There are some books on my shelves I can remember opening for the first time. I remember holding them, flipping through pages, scribbling a note on the inside cover, using them as improvised paperweights, or lending them to a colleague or a student. I remember a lot of things about them. But I do not remember their contents.

Not all books are created equal. Some you only put on your shelves, but never, to use Conan Doyle’s famous metaphor, in your “brain’s attic”. You get them, you read them, and then, like the latest Nicolas Cage film, you essentially forget all about them. Beyond some general concept of what field or question they were supposed to cover, you can scarcely remember anything about their actual argument, the specific points they tried to make, the reasoning they constructed, the particular examples and illustrations they presented.

This is not, of course, in any way the fault of the author. No one ever sets out to write a forgettable book. Nor is it, though, really, the fault of the reader. No one can really be blamed for trying to keep their “brain attic” tidy. Managing one’s memory archives, let us face it, is a highly important component of good scholarly practice.  We have all been there: sooner or later you just reach that tipping point—call it overexposure or discursive saturation—after which everything you read starts to look familiar. That book or article you are now struggling to recall may be a product of many years of hard, honest work. But is it really your fault that what it had to say, in the end, was so unoriginal? Everyone knows how these things work: you open a book, read through the first pages, and a quiet sense of déjà vu slowly creeps in. Hasnt all this already been said before? Didnt somebody else argue the same point years ago? Sooner or later it all just turns into a blur.

But then again, not all books are created equal. There are some that you get to experience in a completely different manner—as distinct intellectual events, as game-changers that define the course of your intellectual biography. There may only be one or two such books in your library or more than twenty; it does not matter. You always remember a lot more about these books than any others. You remember them, above and beyond everything else, for the fact that they become for you a point of continuing reference. They are there, with you, at all times, wherever your thought goes, whatever you research or write about. They are there, with you, because they have taken pride of place in your “brain attic”. Because however much you may disagree with any one individual aspect of their argument or narrative design, for you they always remain a source of knowledge, a model for emulation, a never-ending lesson to learn from.

Over the last thirteen years, International Law and World Order (ILWO) has become one of such lessons and models for me. It brings me great satisfaction to see it come out in a new edition, to know that once more it is available in print and can be accessed by a new generation of international law students.

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

Published on December 28, 2017        Author: 

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: 

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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Remaking the World towards ‘Fair and Reciprocal Trade’? The Case for (More) Interdisciplinarity in International Economic Law

Published on November 17, 2017        Author: 

Geopolitical changes were on full display last week at multiple economic summits in Asia, where red carpet pageantry converged with the dramatic publicity of States brokering new deals at the regional meetings for the Asia-Pacific Economic Cooperation (APEC) in Viet Nam, the Association of Southeast Asian Nations (ASEAN) Heads of State Summit and the 12th East Asia Summit (EAS) in the Philippines, the side meetings of the China-led 16-country bloc drafting the Regional Comprehensive Economic Partnership (RCEP), the Japan-led Trans-Pacific Partnership-11 (recently renamed into the Comprehensive and Progressive Agreement for Trans-Pacific Partnership), with considerable focus on United States President Donald Trump’s 12 day tour in Asia for these meetings as well as for bilateral trade talks with Japan, South Korea, and the Philippines.  In Viet Nam, US President Trump suddenly renamed the Asia-Pacific into the “Indo-Pacific”, a deliberate policy strategy to define Asia beyond China’s growing hegemony into a sphere of alliances built with India, Japan, and other Southeast Asian countries.  

The Asia economic summits conveyed the implicit assumption that international trade and investment treaties had to be revised or rewritten towards “fair trade”, even if there were differing understandings of what that fairness meant.  US President Trump’s address at APEC demanded “fair and reciprocal trade” as part of his ‘America First’ policy, blaming trade agreements for serious US trade deficits with China and other countries. Canadian Prime Minister Justin Trudeau delayed agreeing to renew the TPP partnership under the aegis of the CPTPP, pushing for Canadian interests in ensuring strict environmental and labour standards in the agreement, and succeeding in suspending the problematic provisions in the intellectual property chapter which the US had originated in the TPP draft.  Newly-minted New Zealand Prime Minister Jacinta Ardern claimed victory with the suspension of investor-State dispute settlement clauses from the CPTPP, in favour of compulsory domestic court adjudication for any investment disputes.  In contrast, China took up the cudgels for globalisation and the established institutions and processes of the multilateral system, with Chinese President Xi Jinping firmly declaring at APEC that “economic globalisation is an irreversible historical trend…in pursuing economic globalisation, we should make it more open and inclusive, more balanced, more equitable and beneficial to all.”

The recent pronouncements by world leaders should be of considerable interest to international lawyers, given the heightened political and economic expectations placed on international economic agreements (trade and investment treaties), and what social outcomes they should (or should not) produce beyond the traditionally narrow objectives of liberalising foreign market access.  The international economic system is moving towards a multi-speed configuration of States oscillating between competing economic ideologies (e.g. resurgent new forms of “mercantilist protectionism”, revised ‘mainstream’ neoclassical economics, ‘new’ behavioural economics, among others); changing philosophies of government (e.g. the revival of authoritarianism and ‘illiberal’ democracies, leaning away from liberal democracies); evolving theories on the regulation of property, competition, and information given rapidly-developing technologies (e.g. artificial intelligence and the explosion of automation in supply chains, the domestic and transnational social impacts of the digital ‘sharing’ economy, climate change-driven restructuring to consumption patterns and production processes); and expanding understandings of domestic and transnational challenges to global public goods (e.g. environment, health, peace and security, among others).  Accordingly, there is an even greater burden for international lawyers (especially those that assist or advise States drawing up their respective visions for a new global economic architecture), to clarify and be transparent about how the political, economic, and social ends sought will be effectively met through the current and future mechanisms of international economic law and its institutions for governance and coordination.  Beyond the fog of press publicity, are we candidly and accurately communicating to the politicians the actual limits of international economic treaties, along with their potentials?  

In this post, I argue that international lawyers – especially international economic lawyers tasked with drafting, revising, critiquing, and building the new bilateral, regional, and global constellation of economic treaties – increasingly have to deepen interdisciplinarity, and not just in the sense persuasively observed by Tom Ginsburg and Gregory Shaffer as the “empirical turn in international legal scholarship” (106 American Journal of International Law (2012), pp. 1-46. Perhaps more fundamentally, international lawyers need even more interdisciplinarity, because we are at present hard-pressed to approximate, if not achieve, an idea of “fairness” in the international economic system’s treaties and institutions (no matter how contested that sense of “fairness” is, to begin with).  If we accept that the “fairness of international law” is legitimately our concern as international lawyers and scholars (as Thomas Franck famously argued), we should be more open to readily engaging the interdisciplinary assumptions marshalled in the reform and remaking of international economic treaties and institutions today.  

While we may not of course be the experts in these other disciplines, and we should, indeed, preserve the “relative autonomy” of international law (as Jan Klabbers cautions), some sharpening of our interdisciplinary sensibilities can nevertheless be useful in helping us to test the “good faith” nature of any postulation or assertion on the desired weight, form, content, and structure of our international economic treaties and institutions.  I use three examples of unstated assumptions in the debate over international economic treaties today that illustrate where interdisciplinarity is sorely lacking: 1) that international economic treaties can somehow erase trade deficits and permanently prevent trade imbalances; 2) that international economic treaties can anticipate and provide the most appropriate and suitable dispute resolution mechanism for the particular States parties to these treaties – for the entire life of these treaties – which is problematic with the growing depiction of a supposed ‘binary’ choice between investor-State dispute settlement mechanisms (ISDS) and local court adjudication (and/or political risk insurance); and 3) that international economic treaties can be designed to fully create desired social, environmental, labor, health, education, and all public interest outcomes.  I posit that while interdisciplinarity may show us that international economic treaties could be a correlative, if not possibly one of the causal, factors for desired outcomes, and that we can probably design them with sensitivity and vigilance towards controlling the negative externalities they cause and encouraging positive distributive consequences, the international economic treaty-writing (and rewriting) exercise is complex. We cannot – as politicians do – simplistically oversell or lionise these treaties as somehow the definitive “one size-fits all” solution to remake the world towards “fair and reciprocal trade”.

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Sir Elihu Lauterpacht: A Celebration of His Life and Work

Published on October 25, 2017        Author: 

A memorial symposium celebrating the life and work of Sir Eli Lauterpacht was held at the Faculty of Law in Cambridge on Friday, October 13, 2017, followed the next day by a memorial service in the chapel of Trinity College, Cambridge.  Both were extremely well attended, with about 200 people at the symposium and more at the memorial service.  Trinity College chapel was packed, with the congregation over-spilling into the antechapel.  It was touching to see how many people had come from all over the globe to pay their respects.  A record of both the symposium and service will be created in due course on the Squire Law Library’s Eminent Scholars Archive.

Judge Christopher Greenwood and President Steven Schwebel delivered eulogies at the memorial service. Chris told me that it was the first time in years that he had written out a speech rather than just rely on notes. Eli’s youngest child, Conan ended his eulogy with one of Eli’s favourite jokes about the priest, the vicar, and the rabbi trying to convert a bear to their religion.  This was characteristic of both the symposium and service, which were affectionate and humorous, reflecting Eli’s personality and love of jokes.          

The organisers of the academic symposium which examined Eli’s professional life were clear: no–one who had been asked to talk had refused, and acceptances had been immediate. Read the rest of this entry…

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ICRC Commentary of Common Article 3: Some questions relating to organized armed groups and the applicability of IHL’

Published on October 5, 2017        Author: 

This post is part of the joint blog symposium hosted by EJIL:Talk!, Lawfare and Intercross and arising out of the 5th Transatlantic Workshop on International Law and Armed Conflict held at the European University Institute in Florence this summer.

I was asked during our workshop to discuss some questions related to non-state armed groups raised by the chapeau of Common Article 3 (In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions) and the 2016 ICRC Updated Commentary to Geneva Convention I.

It is well known that for there to be a non-international armed conflict, the violence must involve an organized armed group.  So one of the first questions to arise in this context is what degree of organization of the armed group is required in order to trigger the application of international humanitarian law (IHL)?  

The 2016 ICRC Commentary acknowledges that Article 3 does not provide a detailed definition of its scope of application, nor does it contain a list of criteria for identifying the situations in which it is meant to apply. It is however uncontroversial that armed groups must reach a certain level of organization so as to be bound by IHL. As the well known definition of armed conflicts in the ICTY 1995 decision in the Tadić case reminds: ‘[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ (Prosecutor v. Dusko Tadić (aka ‘Dule’), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), ICTY (Case No. IT-94-1), 2 October 1995, §70).

How to determine the appropriate level of organization seems to be the difficult question. Read the rest of this entry…

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Joint Blog Series on International Law and Armed Conflict: Ashley Deeks on Common Article 3 and Linkages Between Non-State Armed Groups

Published on October 4, 2017        Author: 

The second post in our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Common Article 3 and Linkages Between Non-State Armed Groups’- by Ashley Deeks (University of Virginia School of Law) is now available over on Lawfare.

Here’s a snippet:

Assume State A finds itself in a NIAC with a NSAG – call it “Group X.”  What happens if and when another NSAG – call it “Group Y” – begins to provide certain assistance to Group X?  At what point does Group Y become part of the State A/Group X NIAC, and thus become subject to military force by State A?  This question has arisen in a variety of scenarios, including in the interactions between core al Qaeda and al Qaeda in the Arabian Peninsula and between al Qaeda and al Shabaab.

[…]

Approach 1 – State A should never treat Group X and Group Y as participating in single armed conflict.  Instead, State A should treat its fights with Group X and Group Y as two distinct NIACs.

[…]

Approaches 2 and 3:  These two approaches analogize from the concept of co-belligerency, which originated in international armed conflicts. Approaches 2 and 3 (described below) take different positions on what that concept requires.

[…]

Approach 3 – Assistance by Group Y to Group X in Group X’s NIAC against State A is enough to render Group Y a functional co-belligerent, even if Group Y does not directly engage in hostilities against State A.

[…]

Approach 4 – Use the ICRC’s “direct participation in hostilities” (“DPH”) factors to evaluate Group Y’s efforts in relation to the State A/Group X NIAC.

Read the full post on Lawfare.

 

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