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Home Archive for category "Theory of International Law"

On Theory-Bashing: Why It Happens and What It (Probably) Says About Us

Published on March 17, 2017        Author: 

Introduction

This post is a response (of sorts) to an earlier post made last month by Andrea Bianchi, in which he discusses the widespread aversion and prejudice shared by most international lawyers against the idea of ‘theory’ and the disempowering effects this attitude has had on the contemporary discipline of international legal studies. Whether or not one agrees with the ‘most international lawyers’ part of the claim, the argument Professor Bianchi presents deserves attention and careful consideration. It raises a whole series of important points, not least about the fundamental naivety of the assumption that law as a craft requires no special theoretical awareness on the part of its practitioners. At the same time, however, it also leaves out a number of questions that in a context like this one would, ideally, expect to be given as much, if not more, critical attention.

In this post, I propose to explore some of these questions. The argument offered below is intended to complement and develop Professor Bianchi’s broader point, viz., that theory-bashing is a highly disconcerting tradition that has negative consequences not only for those international lawyers whose main field of work falls in the area of theoretical scholarship, but for the international legal profession as a whole.

Multiple meanings of ‘theory’

To begin with, let us note, firstly, that in modern academic practice the term ‘theory’ is typically used in three fundamentally different senses: Read the rest of this entry…

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International Law in the Age of Trump

Published on February 28, 2017        Author: 

In the second month of Donald Trump’s presidency, we still know little about his foreign policy agenda. He regularly said things during the campaign that suggested a radical departure from longstanding tenets of U.S. foreign policy. And during his first month in office, he caused more than his fair share of diplomatic offense and confusion. But as the New York Times has reported, Trump’s foreign policy has already become more centrist. It’s fair to say, then, that we don’t really know what Trump will do on the international stage.

Still, there’s good reason to believe that the Trump administration will pose unprecedented challenges to international law. In this post, I’ll discuss the three principal ways in which the administration is likely to undercut the existing international legal order. My goal is simply to outline the distinct risks so that we can better appreciate them. I don’t at this point propose any solutions.

  1. Corroding Legal Norms

The first possibility is the most obvious one and has already received some attention: the United States might more readily violate substantive rules of international law or disregard accepted processes for making legally relevant decisions. International legal theorists sometimes claim that legal violations—particularly, high-profile violations by one of the most powerful countries—risk unraveling the entire enterprise of international law. For example, this is how Thomas Franck expressed his concerns about the George W. Bush administration in 2006: “When a community loses faith in law’s power to restrain and channel conduct, this perception propels the descent into anarchy.”

Even if that rhetoric is hyperbolic (and I think it is), repeat violations might corrode specific legal norms. After all, any interaction that puts a particular norm at issue communicates not only whether the norm was effective in the case at hand but also what the norm requires going forward and to what extent it reflects an operative commitment. If the United States repeatedly and blatantly violates a norm, and suffers little repercussion, it will, if nothing else, weaken that norm. In my view, this process of normative evolution is not necessarily bad. Eroded norms might be replaced by new ones that better reflect current problems or expectations. Even so, the transition could be destabilizing. And it would be undesirable if its effect is to increase the threats to global security or human lives.

To be sure, the United States has violated international law before. Reasonable people can disagree about the frequency of those violations, but they are all but certain to accelerate under the Trump administration. President Trump has made clear that he intends to put “America first.” He has also indicated that he defines America’s interests very differently than his predecessors. It’s not a stretch, then, to assume that putting America first means exploiting U.S. power to evade legal rules and processes that the United States has long accepted. Moreover, while other global actors might at times push back against the United States—while they might use international law to try to condemn or constrain it—its raw power could well frustrate these efforts. Read the rest of this entry…

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Engaging with Theory – Why Bother?

Published on February 7, 2017        Author: 

I may be biased, as theory is currently my main area of practice (here and here), but I am deeply convinced that (international) lawyers should engage more with theory.

One of the peculiar features of the official discourse of international law is to look down at theory. I once heard a colleague say that the Faculty should hire more ‘hard’ lawyers and less ‘soft’ lawyers. I reacted with bewilderment at such a novel qualification, asking what he meant. He said that hard law was the real law that is practised in courtrooms and for which there is a high demand in the market. All those people dealing with soft law, such as ‘theory, human rights and the like’, should only have a secondary role in a serious legal curriculum. Rather than being just a peculiar interpretation of soft law, my colleague’s statement hardly hid a conspicuous cultural bias against theory and intellectual activities.

By the same token, yet another colleague of mine once lay claim to be in need of more assistants compared to his other colleagues on the basis that she taught ‘hard black letter law courses’ and not some ‘wishy-washy’ theory ones. Admittedly, the opposite can also be true. I can perfectly well envisage a sectarian group of international law theorists looking down with contempt at all those practitioners who have not read Foucault, Marx and Koskenniemi (please do not attach any particular significance to this random choice of names!). Yet, there is no doubt that in the traditional discourse of international law the still predominant attitude is to vilify theoretical and philosophical investigations and to consider as relevant only the doctrinal conceptualisation of existing concepts and categories.

The fact that international practice seems to be considered by many as the ultimate form of disciplinary recognition is reflective of a profession that for a long time has denigrated intellectual inquiries that go beyond the mere systematisation and rationalisation of legal materials. The scope for critical inquiry and the development of alternative theoretical approaches to international law is a relatively recent phenomenon, and its overall impact on the discipline’s canons and self-perception still to be fully appreciated. Read the rest of this entry…

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Economic Nationalism in a New Age for International Economic Law: Recalling Warnings of Ludwig von Mises and the Austrian School

Published on January 30, 2017        Author: 

International economic law developments barely one month into 2017 have been nothing short of tectonic this side of the Atlantic. From US President Trump’s first executive action to withdraw the United States from the unratified Trans-Pacific Partnership; his subsequent announcement (later called mainly an option) to impose a 20% border tax on Mexican imports into the United States to finance a wall between the two countries; a declared initiative to renegotiate the North American Free Trade Agreement (NAFTA) that was signed under the administration of Republican President George Bush; unprecedented changes to the United States National Security Council removing the nation’s top military, intelligence, and security advisers to only permit regular attendance for White House chief strategist Steve Bannon and more limited attendance of the chairman of the Joint Chiefs of Staff and the Director of National Intelligence; threats of punitive tariffs against China and accusations of illegal currency manipulation; to last Friday’s latest executive order announcing a travel ban against individuals from seven predominantly Muslim states (approximately 218 million persons) and the 4-month suspension of any refugee entry, as a possible first step to a broader ban – it is becoming all too clear that barely ten days into the new presidency, the United States will not be above reversing, abandoning, disregarding, or defecting from any of the established rules and institutions of international economic law, through extraordinary actions and reversals that have scarcely any or no inter-agency vetting and consultation, and significantly, with the new president declining to divest himself from all business interests or to introduce transparency and consultation measures even as these political-security-economic policy reversals continue to be formulated with relative opacity. The Dow Jones industrial averages and NASDAQ composite index both dropped with the sudden rush to sell off US equities, and American private companies have taken to hiring crisis management and communication firms for the new age of undisclosed and sudden economic policy reversals, reviewing operations and mergers against possible charges of being “Anti-American”.

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New EJIL: Live! Interview with Simon Chesterman on Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures

Published on January 19, 2017        Author: 

A new episode of EJIL: Live!, the Journal’s official podcast, is now available. In this episode the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Simon Chesterman, Dean and Professor at the National University of Singapore, about his article, “Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures”, which appears in EJIL, Volume 27, Issue 4.

The conversation takes up the issues advanced by Chesterman in his article on Asia’s ambivalence to international law and institutions, and explores them further. Taking as its starting point the paradox of Asia benefiting most from international law and global governance institutions whilst remaining the least likely to participate in such institutions, the conversation looks at the historical and other reasons for this ambivalence and moves on to discuss possible futures for the involvement of Asian states in international law institutions.

The interview was recorded at the National University of Singapore.

 

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International Law in the Asian Century: Conclusion to Opinio Juris and EJIL:Talk! Mini-Symposium

Published on January 19, 2017        Author: 

Editor’s Note: This post is the final part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. We thank all of those who have contributed to  this symposium.

An academic learns most through errors and omissions. Far better to be criticized in text than footnoted in passing — both, of course, are preferable to being ignored. I am therefore enormously grateful that such esteemed scholars and practitioners were willing to take part in this joint Opinio Juris and EJIL:Talk! symposium and offer their responses to arguments put forward in my article for the current issue of EJIL, giving me and other readers refinements and additions that will enrich the larger conversation of which this symposium is a part.

The six commentators raise many issues, which I will address under three broad headings of power, history, and method. Each also brings to their paper a certain optimism or pessimism about what the future may hold, something to which I will return at the end.

1      Power

Judge Xue Hanqin puts at the forefront an argument about which I may have been too delicate. Asian states are not wary of delegating sovereignty because they are “ambivalent” about international law, she writes, but “because they do not believe that international law as … advocated and practiced would protect their fundamental rights and interests.” Similarly, regional integration is not primarily a matter of law, but of policy. The relative absence of regional institutions in Asia is not simply due to diversity and the other factors highlighted in the article; rather, it is attributable to geopolitical divisions within the region and in its various relations with other great powers.

This echoes a point made by Professor Eyal Benvenisti, who proposes that regional cooperation may be driven by external pressure as much as internal cohesion. The presence of an outside rival, for example, can encourage greater integration as the Soviet Union did for Europe and the United States did for Latin America. No such rival drove regional integration in Asia, though at the sub-regional level ASEAN has clearly been shaped by the ten member states’ relations with larger countries in East and South Asia as well as by their own identification as Southeast Asian. Read the rest of this entry…

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Asian States’ Participation in International Adjudication: Comments

Published on January 18, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting on Monday, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

Asia is a vast region and encompasses more States and a larger population than any other region in the world. Asia also presents historical, linguistic, cultural, and religious diversity, as well as wide-ranging stages of political evolution and economic development. Asia indeed defies an easy definition. It is therefore difficult to speak, in a general term, of Asia with respect to any subject. International law and institutions are no exception. There is a wide variation in Asian States’ engagement with international law and institutions. For example, many States in East Asia are actively participate in various international regimes and attach great importance to international cooperation. On the other hand, some Asian States still adhere to the unrealistic, outdated notion of sovereignty and refuse to engage with other States. It should also be pointed out that Asian States’ attitudes towards international law and institutions are not static but evolving. In this comment, I will confine myself to Asian States’ participation in international adjudication, which may be considered one of the most revealing yardsticks to measure their attitudes toward international law and institutions.

Much has been said about the Asian States’ passivity towards international law and institutions. Various explanations have been given for such reticence, ranging from the Asian culture and tradition which prefer virtue and harmony to law and adjudication to the prevailing distrust of the law and institutions which were essentially a product of the Western civilization (and thus perceived to be biased in favour of the West) and in whose creation and developments Asian states did not play significant roles.

At least in terms of the number of disputes submitted to international adjudication and their political and legal context, it would be difficult to characterize the attitude of Asian States toward international law and adjudication as positive. For example, there had been only three cases involving Asian states that had been referred to the Permanent Court of International Justice during its entire period of activities (S.S. Wimbledon, 1923; Denunciation of the Treaty of 2 November 1865 between China and Belgium, 1928; Interpretation of the Statute of the Memel Territory, 1932). The picture was not much different in the subsequent early period of the International Court of Justice (ICJ), during which many Asian States obtained independence mostly from the Western colonial powers. Iran was the first Asian State to appear before the ICJ in 1952 in the Anglo-Iranian Oil Co. case but Iran was taken to the Court by the United Kingdom. The Court eventually found that it lacked jurisdiction to entertain the dispute. Then India was the next Asian State to appear before the Court in the case concerning Right of Passage over Indian Territory in 1955. However, India was also taken to the Court by Portugal. In 1959, Cambodia instituted the proceedings against Thailand in the Temple of Preah Vihear case, and that was the first case involving the two Asian States before the ICJ. Subsequently in the 1970s, India and Pakistan were involved in the two cases before the Court (Appeal Relating to the Jurisdiction of the ICAO (India v. Pakistan), 1972; Case concerning Trial of Pakistani Prisoners of War (Pakistan v. India), 1973). In the 1980s, Iran was involved in two disputes with the United States before the ICJ. However, those instances were rather exceptions than the rules (US Dipolmatic and Consular Staff in Teheran (USA v. Iran), 1980; Aerial Incident of 3 July 1988 (Iran v. USA), 1989-1996 (discontinuance)).

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Clarity and Ambivalence: Asia and International Law

Published on January 17, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting yesterday, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

One of the important developments in international law in the past few decades has been the increased understanding of approaches to it that do not arise from Western industrialised states. The work of scholars such as Anthony Angie, Lauri Mälksoo, Sundhya Pahuja, Balakrishnan Rajagopal, and others have been important in this regard. Therefore, the article by Simon Chesterman on ‘Asia’s Ambivalence about International Law and International Institutions: Past, Present and Future’ in the EJIL  is a timely engagement with an important aspect of this understanding.

Simon establishes the main issues very well and clearly. A combination of colonialism, treaty-making, recognition and armed conflict is shown to have created an ambivalence by key Asian states towards international law and international institutions. He offers a helpful and nuanced analysis without creating a false dichotomy between ‘Western’ and ‘Asian’ views. It is a pity that his article must have been finalised before 25 June 2016 when the Presidents of Russia and China adopted a common Declaration on the Promotion of International Law. This Declaration has been seen as being a rejection of a view that these two states have a problematic relationship with international law and an assertion of an approach based on state sovereignty and non-intervention, as well showing broader differences on the international constitutional order: see here.

My main hesitation about this valuable article is the definition of ‘Asia’. Simon defines it as being ‘the 53 members of the Asia-Pacific Group at the UN’. However, he ignores the Pacific members (such as Fiji and Papua New Guinea) of this grouping and the Middle Eastern members (such as Iraq, Lebanon and Saudi Arabia), which together comprise nearly 45% of this group. This calls into question some of his reliance on figures and tables about Asia-Pacific participation in international institutions. For example, in the Pacific sub-region, some of the reluctance to ratify treaties and engage in international institutions may be due to their own institutional and human capacity. It would also have been interesting to learn more about the approaches of Singapore and Malaysia, which are economic powers in the region, and have appeared to take a very formalist approach to international law. Read the rest of this entry…

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Will the Asian Vision of International Law become Dominant in 2017?

Published on January 16, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting today, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

Professor Chesterman explores the reasons for the relative under-participation and under-representation of Asian states as a group (what he refers to as Asia) in international lawmaking and in international institutions. Chesterman acknowledges the difficulty in referring to Asia as a group, due to the diversity of the continent. “Indeed,” he adds, “the very concept of ‘Asia’ derives from a term used in Ancient Greece rather than any indigenous political or historic roots.” Diversity is not only cultural or political, but also grounded in different interests, especially given the “great power interests of China, India and Japan” and perhaps also Russia, another crucial Asian player.

Chesterman notes as perhaps another factor for Asian skepticism of international law the previous negative experiences with international law that was used to justify colonial rule and to impose or victors’ justice and Western standards. It is an interesting and ultimately indeterminable question whether it is the history of Western dominated international law that continues to undermine the legitimacy of international law and institutions and suppress regional cooperation in Asia. Perhaps of greater weight are the internally-inflicted refutations and violations of international law by some Asian states in their dealings with other Asian states, which began with Japan’s invasions and occupations before and during World War II and continued by others in different parts of this vast and varied continent, and which are still festering. But arguably of more immediate concern are the contemporary challenges, both from the outside – the perception of Western capture of international law and its use, as Lauri Mälksoo notes, “as an hegemonic tool of the West,” and, again, by Asian countries challenging each other’s vision of international law.

Chesterman is aware of the need to have some common grounds to spark regional cooperation. Often the commonality would be an outside rival, such as the Soviet Union for Western Europe, or the US for Latin America. Asia has had the West as a formidable outside rival whose “divide and rule” strategy cleverly exploited the great disparities among Asian states which left little room for collective resistance. Another common ground that could spark regional cooperation has been internal, such as the shared need to bind future majorities to human rights standards, epitomized by the European move to secure regional protection of human rights. Most Asian states thought they could suppress domestic challenges without the aid of international institutions.

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Asia’s Ambivalence About International Law & Institutions: Introduction to Opinio Juris and EJIL:Talk! mini-symposium

Published on January 16, 2017        Author: 

A decade after moving from New York to Singapore, I began work on this article in the hope of understanding what seemed to me a paradox. Well into the much-vaunted “Asian century”, the states of this region arguably benefit most from the security and economic dividends of a world ordered by international law and institutions — and yet those same states are the least likely to subscribe to such norms or participate in the bodies they create. Regionally, there is no counterpart to the continent-wide organizations in Europe, Africa, or the Americas; individually, Asian states are most reluctant to sign onto most international regimes and underrepresented in the entities that govern them.

The article opens with a brief history of Asia’s engagement with international law. The focus is on three aspects that continue to have resonance today and contribute to the wariness of international law and institutions. First and foremost is the experience of colonialism by India and many other countries across the continent: for centuries international law helped justify foreign rule, later establishing arbitrary standards of “civilization” that were required in order to gain meaningful independence. Secondly, and more specific to China, the unequal treaties of the nineteenth century and the failure to recognize the Communist government in Beijing for much of the twentieth encouraged a perception that international law is primarily an instrument of political power. Thirdly, and of particular relevance to Japan, the trials that followed the Second World War left a legacy of suspicion that international criminal law only deals selectively with alleged misconduct — leaving unresolved many of the larger political challenges of that conflict, with ongoing ramifications today.

It should not be surprising, therefore, that some Asian states take the position that international law is of questionable legitimacy, can be used for instrumental purposes, and is necessarily selective in its application. Read the rest of this entry…

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