Approaches to International Law
Encyclopedia
International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of public international law and institutions and to suggest improvements. Some approaches center on the question of compliance: why states follow international norms in the absence of a coercive power that ensures compliance. Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international legal norms, that limit their freedom of action, in the absence of a world legislature. Other perspectives are policy oriented; they elaborate theoretical frameworks and instruments to criticize the existing rules and make suggestions on how to improve them. Some of these approaches are based on domestic legal theory, others are interdisciplinary, while others have been developed expressly to analyse international law.
atic truths thought to be reposed in natural law
. 16th century natural law writer, Francisco de Vitoria
, a professor of theology
at the University of Salamanca
, examined the questions of the just war
, the Spanish authority in the Americas
, and the rights of the Native American peoples.
a Dutch
theologian, humanist
and jurist
played a key role in the development of modern international law. In his De jure Belli ac Pacis Libri Tres ("Three Books on the Law of War and Peace") of 1625, and drawing from the Bible
and from the St. Augustine's
just war
theory, he argued that nations as well as persons ought to be governed by universal principle based on morality
and divine justice
. Drawing, though, from domestic contract law, he argued that relations among polities ought to be governed by the law of peoples, the jus gentium
, established by the consent of the community of nations on the basis of the principle of pacta sunt servanda
, that is, on the basis of the observance of commitments. On his part, Christian von Wolff, contended the international community should be a world superstate (civitas maxima), having authority over the component member states. Emmerich de Vattel rejected this view and argued instead for the equality of states as articulated by 18th century natural law. In Le droit des gens, Vattel suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other.
During the 17th century, the basic tenents of the Grotian or eclectic
school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshirned in the 1648 Peace of Westphalia
.
school emphasized the importance of custom and treaties as sources of international law. Early positivist scholar Alberico Gentili
used historical examples to posit that positive law (jus voluntarium) was determined by general consent. Another positivist scholar, Richard Zouche, published the first manual of international law in 1650.
Legal positivism became the dominant legal theory of 18th century and found its way into international legal philosophy. At the time, Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states. John Jacob Moser emphasized the importance of state practice in international law. Georg Friedrich von Martens
, published the first systematic manual on positive international law, Precis du droit des gens moderne de l'Europe. During the 19th century, positivist legal theory became even more dominant due to nationalism
and the Hegelian philosophy. International Commercial law
became a branch of domestic law: private international law, separate from public international law. Positivism narrowed the range of international practice that might qualify as law, favouring rationality
over morality
and ethics. The 1815 Congress of Vienna
marked the formal recognition of the political and international legal system based on the conditions of Europe.
Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an "objective
" reality that must be distinguished from law "as it should be." Classic positivism demands rigorous tests for legal
validity
. Extralegal arguments, i.e., arguments that have no textual, systemic or historical basis on the law, are deemed irrelevant to legal analysis. There is only hard law, no soft law
. Criticisms of positivist international legal theory include its rigidity, its focus on state consent, without allowing for interpretation, and the fact that it does not allow moral judgements regarding a State's conduct as long as it follows international norms.
and international relations
:realism, liberalism
, institutionalism
, and constructivism
to examine, through an interdisciplinary approach, the content of legal rules and institutions, to explain why and how legal institutions came to be and why they are effective. These methods have led some scholars to reconceptualize international law in general.
Within the Realist approach, some scholars have proposed an "enforcement theory" according to which international legal norms are effective insofar as they "publicize clear rules, enhance monitoring of compliance, and institutionalize collective procedures for punishing violations, thereby enhancing the deterrent
and coercive effects of a stable balance of power
." Thus, the role of reciprocity
and sanctions
is underlined. Morrow, for instance, notes that:
, some scholars argue that the states' stance towards international law is determined by their domestic politics and, in particular, by the aggregation of the preferences of key domestic individuals and groups toward the rule of law
. Thus, democratic states
, having a representative government, are more likely than non-democratic states to accept the legal regulation of both domestic and international politics, and more likely to accept and observe international law. Furthermore, democratic societies are linked by a complex net of interstate, transnational and transgovernmental relations
so that both their foreign policy bureaucracies and their civil societies
are interested in promoting and strengthening transnational cooperation through the creation and observance of international legal norms. Hence, the adoption of and the compliance with international legal norms among democratic states should be easier and more peaceful than the observance of international law among non-democratic states. In this regard, Slaughter
notes that:
to identify the legal implications of maximizing behavior inside and outside of markets. Economics is the study of ration choice under limited conditions. Rational choice is the assumption that individual actors seek to maximize their preferences.
Most of the economic theory employed here is neoclassical
traditional economics. Economic techniques include price theory, which evaluates strategic interaction between actors. Transaction cost economics, which incorporates cost of identifying actors, negotiating, and costs of enforcing agreements into price theory. Game Theory
, which can demonstrate how actors with maximizing behavior might fail to take action increase join gain. Public choice applies economic tools to problems outside of markets.
These tools are used to describe and evaluate law. Using these tools laws are tested for economic efficiency. Economic theories are also used to propose changes in the law. This approach urges the adoption of laws that maximize wealth.
Potential application of this approach would begin with a text-based interpretation. A secondary concern is whether or not an actual "market" context is functioning well. Thirdly, ways to improve the imperfect market are proposed.
This approach could be used to analyze general legal questions, because this approach provides highly specified rules and provides the rationale for using them.
This approach relies on assumptions that perfect competition
exists, and that individuals will behave to maximize their preferences. The empirical presence of these conditions is often difficult to determine.
from the discipline of international relations", who realized with the beginning of the Cold War
how little international law played a role in international affairs. ILP was made a legitimate theory in the 1968 casebook International Legal Process, by Chayes, Ehrlich and Lowenfeldan, in which the American legal process method was adapted to create an international legal process. ILP describes the way international legal processes work, and the formal and informal ways that foreign offices incorporate international law. ILP also measures the extent to which individuals are held accountable for abuses in international conflicts. While ILP recognizes that international law does not force decision makers' actions, it suggests that international law serves as a justification, constraint, and organizing device. Criticism of ILP's lack of normative qualities in its method resulted in the emergence of a new ILP.
The New International Legal Process (NLP) incorporates both law as a process and as the values of each society respectively. Unlike the American Legal System, it considers normative values other than democracy, such as "…feminism
, republicanism
, law and economics, liberalism
as well as human rights, peace and protection to the environment." The NLP is unique in its flexibility in adapting to the evolution of values. This component of the method is important in order to resolve the changing of legal standards over time. The NLP
shows its true departure from the ILP by addressing what happens in the situation of conflict, as well as what should be happening.
, Harold D. Lasswell
, and W. Michael Reisman. Its intellectual antecedents lie in sociological jurisprudence
of Roscoe Pound
and the reformist ambitions of the American Legal Realists
. From the standpoint of the New Haven approach, jurisprudence is a theory about making social choices. International law itself reflects the expectations of relevant community members about stable patterns of behavior created by assertions of control by legal authorities. The primary jurisprudential and intellectual tasks are the prescription and application of policy in ways that maintain community order and simultaneously achieve the best possible approximation of the community's social goals. These normative
social goals or values of the New Haven approach include maximizing shared community values, such as wealth, enlightenment, skill, well-being, affection, respect and rectitude. The teleological goal of New Haven School jurisprudence is the interpretation of international law as a system of creating minimum world public order, with continued progress toward the development of shared values into an optimum order.
(CLS) emerged as a legal theory in America during the 1970s. It exists to this day as a method of analyzing international law from a highly theoretical perspective. The method proposes that the nature of international law is limited because it is determined by language, which is biased and still stuck in the conventional structures of politics and power. Critical Legal scholars argue that those structures of power can be found within the binaries that exist in legal language (man vs. woman, majority vs. minority, etc.). Recognizing the political aspect of international law, these scholars also argue that universality is impossible. Criticism of this method suggests that this radical practice is impossible to put into application. It was successful, however, in pushing forward other approaches to international law (feminist
, cultural relativist
, etc.) because of its deep analysis of language, and all the imbalance that it reveals.
The central case approach allows for more complexity than the traditional binary method of analysis. In binary terms, human rights are simply violated or they are upheld. This does not allow for degrees of severity of a human rights
violation, which creates a deceptively simplistic view of a situation.
John Finnis
developed the concept of a central case as it applied to assessing legal systems; Tai-Heng Cheng
was the first to apply it to human rights. If used by decision-makers, the central case approach could be effective in preventing human rights abuses. It takes into account a society's political and social situations in addition to specific human rights abuses. This enables it to detect trends of human rights abuses, and the reasons behind these trends. The depth of a central case analysis exposes the different degrees of human rights abuses that occur, allowing policy makers to focus on the most severe cases and patterns of abuse with more urgency.
The central case approach provides an accurate and flexible picture of situations that are in a state of change. Whereas a binary appraisal would conclude whether a human right had been violated at one point in time, the central case approach can detect shifting political and social conditions and patterns that give a more nuanced view of the state of human rights.
and practice by arguing it is patriarchal
, presenting men as the norm and women as a deviation from the norm. Feminist theorists propose to change legal language to make it more inclusive of women, or to rethink law completely, so it is possible to promote broader social goals of justice and equality. Feminist methods seek to expose the biases from which international law is written and particularly the notion that women are more vulnerable than men and need special protection under the law. Feminist theorist Hilary Charlesworth
criticizes the dialogue of women as victims in need of protection from both men and international law. Additionally, she argues that the irony of the dominant language is that while it aims to especially protect women, the emphasis is on the protection of her honor and not on the protection of her social, cultural and economic rights.
(LGBT) International Law Theory is a critical school of thought that continues to develop as the shortcomings of international law are realized, in regard to the integration of queer theory
into international law theory. While human rights conventions have recently begun to generalize in regard to equality and its recipients, in the past, any discussions of sexual orientation
and gender identity
have gone largely untouched. The movement of LGBT International Law Theory centers on the inclusion and awareness of LGBT rights (and protection of persons), as well as the integration of queer theory within the realm of international law.
As LGBT theory has become more prominent in scholarly works, international court
s and international law organizations
(particularly the European Union
Council and the United Nations
) have considered workplace discrimination on the basis of sexuality, issues stemming from the definition of family in regard to homosexual unions
, the position of
transsexuals
in the question of sexual orientation, the need for recognition of LGBT rights in regard to general health advocacy and the HIV/AIDS crisis, the inclusion of and LGBT advocacy group within the UN (with advisor status), and the ongoing active persecution of people engaging in homosexual acts, among other issues.
According to scholar Nancy Levit, the challenges for gay legal theory are twofold: to move away from the frailties of both formal equality and antisubordination theories, and to develop ways of representing sexual minorities that will make them more acceptable, if not valuable, in a broader cultural context, that is the critical body of LGBT International Law Theory.
and following empire itself dominate a long period of time in history, but also the very debate over whether or not the term "international law" is an applicable term is not yet decided. Many scholars and authors define international law as "the law governing relations between sovereign, territorial states."
Any attempt to find a similar parallel in Roman law
would find a logical starting point in the ius gentium (the laws of nations). The ius gentium began as a Roman recognition of like legal practices and institutions (such as slavery
) that was found at that time in most states. This brand of law was in fact private law
in itself and mainly dictated the way in which the Roman state was to deal with individual foreigners, not entire states. However, when citizenship
was granted to all free men in the empire in 212 A.D. ius gentium ceased to cling to its original definition and instead was applied to states as a whole. Some semblance of modern international law can therefore be found in this shift. The actual extent of these origins and their relevance to modern law is a topic that has not yet been approached in any depth.
, Critical legal studies
, Marxist theory and critical race theory
. TWAIL scholarship prioritizes in its study the power dynamic between the First World
and Third World
and the role of international law in legitimizing the subjugation and oppression of Third World peoples. TWAIL scholars try to avoid presenting the "Third World" as a unified, coherent place but rather use the term to indicate peoples who have the shared experience of underdevelopment and marginalization.
Contemporary TWAIL scholarship has it origins in works of jurists such as Georges Abi-Saab
, F. Garcia-Amador R.P. Anand, Mohammed Bedjaoui
, and Taslim O. Elias. Over the years, several Western scholars have been sympathetic to the Third World's position and made important contributions to this body of scholarship, and these include, scholars such as C.H. Alexandrowicz, Richard Falk, Nico Schrijver and PJ.I.M. de Waart. David Kennedy
and Martti Koskenniemi
have also contributed support in their own work.
TWAIL as a loose network of scholars has had three conferences thus far. TWAIL I was held at Harvard Law School
in March, 1997. TWAIL II was held in October 2001 at Osgoode Hall Law School
. TWAIL III was held at Albany Law School
in April 2007. TWAIL 2011 will be held at the University of Oregon School of Law in October 2011.
A 2009 article by Johnson argues that the SADC Parliamentary Forum’s Model Law on HIV is, at the same time, in conformity with international human rights law and has the capacity to advance TWAIL objectives via regional coalitions of leadership and jurisprudence in response to an epidemic with its own regional characteristics.
A 2010 article by Al Attar and Miller and argues that the Bolivarian Alliance for the Americas (ALBA) may present a potential for developing TWAIL in practice, describing ALBA as having "a cohesive counter-vision of international law rooted in notions of complementarity and human solidarity".
Trade, Law and Development
has published a Special Issue on TWAIL for Spring 2011.
Natural law
Many early international legal theorists were concerned with axiomAxiom
In traditional logic, an axiom or postulate is a proposition that is not proven or demonstrated but considered either to be self-evident or to define and delimit the realm of analysis. In other words, an axiom is a logical statement that is assumed to be true...
atic truths thought to be reposed in natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
. 16th century natural law writer, Francisco de Vitoria
Francisco de Vitoria
Francisco de Vitoria, OP was a Spanish Renaissance Roman Catholic philosopher, theologian and jurist, founder of the tradition in philosophy known as the School of Salamanca, noted especially for his contributions to the theory of just war and international law...
, a professor of theology
Theology
Theology is the systematic and rational study of religion and its influences and of the nature of religious truths, or the learned profession acquired by completing specialized training in religious studies, usually at a university or school of divinity or seminary.-Definition:Augustine of Hippo...
at the University of Salamanca
Salamanca
Salamanca is a city in western Spain, in the community of Castile and León. Because it is known for its beautiful buildings and urban environment, the Old City was declared a UNESCO World Heritage Site in 1988. It is the most important university city in Spain and is known for its contributions to...
, examined the questions of the just war
Just War
Just war theory is a doctrine of military ethics of Roman philosophical and Catholic origin, studied by moral theologians, ethicists and international policy makers, which holds that a conflict ought to meet philosophical, religious or political criteria.-Origins:The concept of justification for...
, the Spanish authority in the Americas
Americas
The Americas, or America , are lands in the Western hemisphere, also known as the New World. In English, the plural form the Americas is often used to refer to the landmasses of North America and South America with their associated islands and regions, while the singular form America is primarily...
, and the rights of the Native American peoples.
Eclectic or Grotian approach
Hugo GrotiusHugo Grotius
Hugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...
a Dutch
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
theologian, humanist
Humanism
Humanism is an approach in study, philosophy, world view or practice that focuses on human values and concerns. In philosophy and social science, humanism is a perspective which affirms some notion of human nature, and is contrasted with anti-humanism....
and jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
played a key role in the development of modern international law. In his De jure Belli ac Pacis Libri Tres ("Three Books on the Law of War and Peace") of 1625, and drawing from the Bible
Bible
The Bible refers to any one of the collections of the primary religious texts of Judaism and Christianity. There is no common version of the Bible, as the individual books , their contents and their order vary among denominations...
and from the St. Augustine's
Augustine of Hippo
Augustine of Hippo , also known as Augustine, St. Augustine, St. Austin, St. Augoustinos, Blessed Augustine, or St. Augustine the Blessed, was Bishop of Hippo Regius . He was a Latin-speaking philosopher and theologian who lived in the Roman Africa Province...
just war
Just War
Just war theory is a doctrine of military ethics of Roman philosophical and Catholic origin, studied by moral theologians, ethicists and international policy makers, which holds that a conflict ought to meet philosophical, religious or political criteria.-Origins:The concept of justification for...
theory, he argued that nations as well as persons ought to be governed by universal principle based on morality
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
and divine justice
Divine retribution
Divine retribution is supernatural punishment of a person, a group of people, or all humanity by a deity in response to some human action.Many cultures have a story about how a deity exacted punishment on previous inhabitants of their land, causing their doom.An example of divine retribution is the...
. Drawing, though, from domestic contract law, he argued that relations among polities ought to be governed by the law of peoples, the jus gentium
Jus gentium
Ius gentium, Latin for "law of nations", was originally the part of Roman law that the Roman Empire applied to its dealings with foreigners, especially provincial subjects...
, established by the consent of the community of nations on the basis of the principle of pacta sunt servanda
Pacta sunt servanda
Pacta sunt servanda , is a brocard, a basic principle of civil law and of international law.In its most common sense, the principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that nonfulfilment of respective obligations is a breach of the...
, that is, on the basis of the observance of commitments. On his part, Christian von Wolff, contended the international community should be a world superstate (civitas maxima), having authority over the component member states. Emmerich de Vattel rejected this view and argued instead for the equality of states as articulated by 18th century natural law. In Le droit des gens, Vattel suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other.
During the 17th century, the basic tenents of the Grotian or eclectic
Eclecticism
Eclecticism is a conceptual approach that does not hold rigidly to a single paradigm or set of assumptions, but instead draws upon multiple theories, styles, or ideas to gain complementary insights into a subject, or applies different theories in particular cases.It can sometimes seem inelegant or...
school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshirned in the 1648 Peace of Westphalia
Peace of Westphalia
The Peace of Westphalia was a series of peace treaties signed between May and October of 1648 in Osnabrück and Münster. These treaties ended the Thirty Years' War in the Holy Roman Empire, and the Eighty Years' War between Spain and the Dutch Republic, with Spain formally recognizing the...
.
Legal positivism
The early positivistLegal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
school emphasized the importance of custom and treaties as sources of international law. Early positivist scholar Alberico Gentili
Alberico Gentili
Alberico Gentili was an Italian jurist. He left Italy due to his Protestant faith, travelled in Central Europe, and emigrated to England. In 1580 he became regius professor of civil law at the University of Oxford...
used historical examples to posit that positive law (jus voluntarium) was determined by general consent. Another positivist scholar, Richard Zouche, published the first manual of international law in 1650.
Legal positivism became the dominant legal theory of 18th century and found its way into international legal philosophy. At the time, Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states. John Jacob Moser emphasized the importance of state practice in international law. Georg Friedrich von Martens
Georg Friedrich von Martens
Georg Friedrich von Martens was a German jurist and diplomat. Educated at the universities of Göttingen, Regensburg and Vienna, he became professor of jurisprudence at Göttingen in 1783 and was ennobled in 1789...
, published the first systematic manual on positive international law, Precis du droit des gens moderne de l'Europe. During the 19th century, positivist legal theory became even more dominant due to nationalism
Nationalism
Nationalism is a political ideology that involves a strong identification of a group of individuals with a political entity defined in national terms, i.e. a nation. In the 'modernist' image of the nation, it is nationalism that creates national identity. There are various definitions for what...
and the Hegelian philosophy. International Commercial law
Commercial law
Commercial law is the body of law that governs business and commercial transactions...
became a branch of domestic law: private international law, separate from public international law. Positivism narrowed the range of international practice that might qualify as law, favouring rationality
Rationality
In philosophy, rationality is the exercise of reason. It is the manner in which people derive conclusions when considering things deliberately. It also refers to the conformity of one's beliefs with one's reasons for belief, or with one's actions with one's reasons for action...
over morality
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
and ethics. The 1815 Congress of Vienna
Congress of Vienna
The Congress of Vienna was a conference of ambassadors of European states chaired by Klemens Wenzel von Metternich, and held in Vienna from September, 1814 to June, 1815. The objective of the Congress was to settle the many issues arising from the French Revolutionary Wars, the Napoleonic Wars,...
marked the formal recognition of the political and international legal system based on the conditions of Europe.
Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an "objective
Objectivity (philosophy)
Objectivity is a central philosophical concept which has been variously defined by sources. A proposition is generally considered to be objectively true when its truth conditions are met and are "mind-independent"—that is, not met by the judgment of a conscious entity or subject.- Objectivism...
" reality that must be distinguished from law "as it should be." Classic positivism demands rigorous tests for legal
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
validity
Validity
In logic, argument is valid if and only if its conclusion is entailed by its premises, a formula is valid if and only if it is true under every interpretation, and an argument form is valid if and only if every argument of that logical form is valid....
. Extralegal arguments, i.e., arguments that have no textual, systemic or historical basis on the law, are deemed irrelevant to legal analysis. There is only hard law, no soft law
Soft law
The term "soft law" refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditionallaw, often contrasted with soft law by being referred to as "hard law"...
. Criticisms of positivist international legal theory include its rigidity, its focus on state consent, without allowing for interpretation, and the fact that it does not allow moral judgements regarding a State's conduct as long as it follows international norms.
International Relations - International Law approaches
Legal scholars have drawn from the four main schools of thought in the areas of political sciencePolitical science
Political Science is a social science discipline concerned with the study of the state, government and politics. Aristotle defined it as the study of the state. It deals extensively with the theory and practice of politics, and the analysis of political systems and political behavior...
and international relations
International relations
International relations is the study of relationships between countries, including the roles of states, inter-governmental organizations , international nongovernmental organizations , non-governmental organizations and multinational corporations...
:realism, liberalism
Liberal international relations theory
Unlike realism where the state is seen as a unitary actor, liberalism allows for plurality in state actors. Thus, preferences will vary from state to state, depending on factors such as culture, economic system or government type...
, institutionalism
Institutional liberalism
Institutional liberalism or liberal institutionalism is modern theory of international relations which claims that international institutions such as the United Nations, NATO and the European Union can increase and aid cooperation between states...
, and constructivism
Constructivism in international relations
In the discipline of international relations, constructivism is the claim that significant aspects of international relations are historically and socially contingent, rather than inevitable consequences of human nature or other essential characteristics of world politics.-Development:Nicholas Onuf...
to examine, through an interdisciplinary approach, the content of legal rules and institutions, to explain why and how legal institutions came to be and why they are effective. These methods have led some scholars to reconceptualize international law in general.
Realism
Realism contends that, in an anarchic international system, states are locked in a perpetual struggle for survival that obligates them to maximize their relative power in order to preserve their territory and existence. Since international cooperation is possible only inasmuch as it responds to the states' self-interest in maximizing their power and prospects for survival, states do not pursue cooperation on the basis of normative commitments. According to Realist legal scholars, states adopt only international legal norms that either enhance their power, formalize the subordination of weaker states, or that they intend to violate deliberately to their own advantage. International Law may thus address only peripheral matters that do not impact the states´ power or autonomy. Consequently, for realists, international law is a "tenuous net of breakable obligations"Within the Realist approach, some scholars have proposed an "enforcement theory" according to which international legal norms are effective insofar as they "publicize clear rules, enhance monitoring of compliance, and institutionalize collective procedures for punishing violations, thereby enhancing the deterrent
Deterrence (legal)
Deterrence is the use of punishment as a threat to deter people from committing a crime. Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done.- Categories :Deterrence can...
and coercive effects of a stable balance of power
Balance of power in international relations
In international relations, a balance of power exists when there is parity or stability between competing forces. The concept describes a state of affairs in the international system and explains the behavior of states in that system...
." Thus, the role of reciprocity
Reciprocity (international relations)
In international relations and treaties, the principle of reciprocity states that favours, benefits, or penalties that are granted by one state to the citizens or legal entities of another, should be returned in kind....
and sanctions
International sanctions
International sanctions are actions taken by countries against others for political reasons, either unilaterally or multilaterally.There are several types of sanctions....
is underlined. Morrow, for instance, notes that:
Liberalism
Based on the Liberal international relations theoryLiberal international relations theory
Unlike realism where the state is seen as a unitary actor, liberalism allows for plurality in state actors. Thus, preferences will vary from state to state, depending on factors such as culture, economic system or government type...
, some scholars argue that the states' stance towards international law is determined by their domestic politics and, in particular, by the aggregation of the preferences of key domestic individuals and groups toward the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
. Thus, democratic states
Liberal democracy
Liberal democracy, also known as constitutional democracy, is a common form of representative democracy. According to the principles of liberal democracy, elections should be free and fair, and the political process should be competitive...
, having a representative government, are more likely than non-democratic states to accept the legal regulation of both domestic and international politics, and more likely to accept and observe international law. Furthermore, democratic societies are linked by a complex net of interstate, transnational and transgovernmental relations
Complex interdependence
Complex interdependence in international relations is the idea put forth by Robert Keohane and Joseph Nye that states and their fortunes are inextricably tied together. The concept of economic interdependence was popularized through the work of Richard N. Cooper...
so that both their foreign policy bureaucracies and their civil societies
Civil society
Civil society is composed of the totality of many voluntary social relationships, civic and social organizations, and institutions that form the basis of a functioning society, as distinct from the force-backed structures of a state , the commercial institutions of the market, and private criminal...
are interested in promoting and strengthening transnational cooperation through the creation and observance of international legal norms. Hence, the adoption of and the compliance with international legal norms among democratic states should be easier and more peaceful than the observance of international law among non-democratic states. In this regard, Slaughter
Anne-Marie Slaughter
Anne-Marie Slaughter was the Director of Policy Planning for the U.S. State Department from January 2009 until February 2011. She is the Bert G...
notes that:
Rational Choice and Game Theory
This approach to law applies theories or economicsEconomics
Economics is the social science that analyzes the production, distribution, and consumption of goods and services. The term economics comes from the Ancient Greek from + , hence "rules of the house"...
to identify the legal implications of maximizing behavior inside and outside of markets. Economics is the study of ration choice under limited conditions. Rational choice is the assumption that individual actors seek to maximize their preferences.
Most of the economic theory employed here is neoclassical
Neoclassical economics
Neoclassical economics is a term variously used for approaches to economics focusing on the determination of prices, outputs, and income distributions in markets through supply and demand, often mediated through a hypothesized maximization of utility by income-constrained individuals and of profits...
traditional economics. Economic techniques include price theory, which evaluates strategic interaction between actors. Transaction cost economics, which incorporates cost of identifying actors, negotiating, and costs of enforcing agreements into price theory. Game Theory
Game theory
Game theory is a mathematical method for analyzing calculated circumstances, such as in games, where a person’s success is based upon the choices of others...
, which can demonstrate how actors with maximizing behavior might fail to take action increase join gain. Public choice applies economic tools to problems outside of markets.
These tools are used to describe and evaluate law. Using these tools laws are tested for economic efficiency. Economic theories are also used to propose changes in the law. This approach urges the adoption of laws that maximize wealth.
Potential application of this approach would begin with a text-based interpretation. A secondary concern is whether or not an actual "market" context is functioning well. Thirdly, ways to improve the imperfect market are proposed.
This approach could be used to analyze general legal questions, because this approach provides highly specified rules and provides the rationale for using them.
This approach relies on assumptions that perfect competition
Perfect competition
In economic theory, perfect competition describes markets such that no participants are large enough to have the market power to set the price of a homogeneous product. Because the conditions for perfect competition are strict, there are few if any perfectly competitive markets...
exists, and that individuals will behave to maximize their preferences. The empirical presence of these conditions is often difficult to determine.
International Legal Process
The classic International Legal Process is the method of studying how international law is practically applied to, and functions within international policy, as well as the study of how international law can be improved. "It concentrates not so much on the exposition of rules and their content as on how international legal rules are actually used by the makers of foreign policy". ILP was developed in response to the "realistsLegal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
from the discipline of international relations", who realized with the beginning of the Cold War
Cold War
The Cold War was the continuing state from roughly 1946 to 1991 of political conflict, military tension, proxy wars, and economic competition between the Communist World—primarily the Soviet Union and its satellite states and allies—and the powers of the Western world, primarily the United States...
how little international law played a role in international affairs. ILP was made a legitimate theory in the 1968 casebook International Legal Process, by Chayes, Ehrlich and Lowenfeldan, in which the American legal process method was adapted to create an international legal process. ILP describes the way international legal processes work, and the formal and informal ways that foreign offices incorporate international law. ILP also measures the extent to which individuals are held accountable for abuses in international conflicts. While ILP recognizes that international law does not force decision makers' actions, it suggests that international law serves as a justification, constraint, and organizing device. Criticism of ILP's lack of normative qualities in its method resulted in the emergence of a new ILP.
The New International Legal Process (NLP) incorporates both law as a process and as the values of each society respectively. Unlike the American Legal System, it considers normative values other than democracy, such as "…feminism
Feminism
Feminism is a collection of movements aimed at defining, establishing, and defending equal political, economic, and social rights and equal opportunities for women. Its concepts overlap with those of women's rights...
, republicanism
Republicanism
Republicanism is the ideology of governing a nation as a republic, where the head of state is appointed by means other than heredity, often elections. The exact meaning of republicanism varies depending on the cultural and historical context...
, law and economics, liberalism
Liberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
as well as human rights, peace and protection to the environment." The NLP is unique in its flexibility in adapting to the evolution of values. This component of the method is important in order to resolve the changing of legal standards over time. The NLP
shows its true departure from the ILP by addressing what happens in the situation of conflict, as well as what should be happening.
New Haven Approach
The New Haven School is a policy-oriented perspective on international law pioneered by Myres S. McDougalMyres S. McDougal
Myres S. McDougal was a professor at the Yale Law School for fifty years. Born in Burton Mississippi on November 23, 1906, he died on May 7, 1998....
, Harold D. Lasswell
Harold Lasswell
Harold Dwight Lasswell was a leading American political scientist and communications theorist. He was a member of the Chicago school of sociology and was a professor at Yale University in law. He was a President of the American Political Science Association and World Academy of Art and Science...
, and W. Michael Reisman. Its intellectual antecedents lie in sociological jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
of Roscoe Pound
Roscoe Pound
Nathan Roscoe Pound was a distinguished American legal scholar and educator. He was Dean of Harvard Law School from 1916 to 1936...
and the reformist ambitions of the American Legal Realists
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
. From the standpoint of the New Haven approach, jurisprudence is a theory about making social choices. International law itself reflects the expectations of relevant community members about stable patterns of behavior created by assertions of control by legal authorities. The primary jurisprudential and intellectual tasks are the prescription and application of policy in ways that maintain community order and simultaneously achieve the best possible approximation of the community's social goals. These normative
Norm (sociology)
Social norms are the accepted behaviors within a society or group. This sociological and social psychological term has been defined as "the rules that a group uses for appropriate and inappropriate values, beliefs, attitudes and behaviors. These rules may be explicit or implicit...
social goals or values of the New Haven approach include maximizing shared community values, such as wealth, enlightenment, skill, well-being, affection, respect and rectitude. The teleological goal of New Haven School jurisprudence is the interpretation of international law as a system of creating minimum world public order, with continued progress toward the development of shared values into an optimum order.
Critical Legal Studies
Critical Legal StudiesCritical legal studies
Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....
(CLS) emerged as a legal theory in America during the 1970s. It exists to this day as a method of analyzing international law from a highly theoretical perspective. The method proposes that the nature of international law is limited because it is determined by language, which is biased and still stuck in the conventional structures of politics and power. Critical Legal scholars argue that those structures of power can be found within the binaries that exist in legal language (man vs. woman, majority vs. minority, etc.). Recognizing the political aspect of international law, these scholars also argue that universality is impossible. Criticism of this method suggests that this radical practice is impossible to put into application. It was successful, however, in pushing forward other approaches to international law (feminist
Feminism
Feminism is a collection of movements aimed at defining, establishing, and defending equal political, economic, and social rights and equal opportunities for women. Its concepts overlap with those of women's rights...
, cultural relativist
Cultural relativism
Cultural relativism is the principle that an individual human's beliefs and activities should be understood by others in terms of that individual's own culture. This principle was established as axiomatic in anthropological research by Franz Boas in the first few decades of the 20th century and...
, etc.) because of its deep analysis of language, and all the imbalance that it reveals.
Central Case Approach
The central case approach is a method of looking at human rights situations. This approach recognizes the existence of certain universal rights. It begins analyzing a human rights issue by constructing a hypothetical ideal situation in which those rights are applied, a standard against which to compare an actual situation. The central case approach then investigates to what extent, and in what ways the actual situation deviates from the ideal (or the central case).The central case approach allows for more complexity than the traditional binary method of analysis. In binary terms, human rights are simply violated or they are upheld. This does not allow for degrees of severity of a human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
violation, which creates a deceptively simplistic view of a situation.
John Finnis
John Finnis
John Finnis , is an Australian legal scholar and philosopher, specializing in the philosophy of law. He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law...
developed the concept of a central case as it applied to assessing legal systems; Tai-Heng Cheng
Tai-Heng Cheng
Tai-Heng Cheng is a legal scholar, lawyer, and international arbitrator. Since June 1, 2006, he has been Associate Professor and Associate Director of the Center for International Law at New York Law School ....
was the first to apply it to human rights. If used by decision-makers, the central case approach could be effective in preventing human rights abuses. It takes into account a society's political and social situations in addition to specific human rights abuses. This enables it to detect trends of human rights abuses, and the reasons behind these trends. The depth of a central case analysis exposes the different degrees of human rights abuses that occur, allowing policy makers to focus on the most severe cases and patterns of abuse with more urgency.
The central case approach provides an accurate and flexible picture of situations that are in a state of change. Whereas a binary appraisal would conclude whether a human right had been violated at one point in time, the central case approach can detect shifting political and social conditions and patterns that give a more nuanced view of the state of human rights.
Feminist Legal Theory
Feminist legal theory critiques current legal vocabularyLegal writing
Legal writing is a type of technical writing used by lawyers, judges, legislators, and others in law to express legal analysis and legal rights and duties.- Authority :...
and practice by arguing it is patriarchal
Patriarchy
Patriarchy is a social system in which the role of the male as the primary authority figure is central to social organization, and where fathers hold authority over women, children, and property. It implies the institutions of male rule and privilege, and entails female subordination...
, presenting men as the norm and women as a deviation from the norm. Feminist theorists propose to change legal language to make it more inclusive of women, or to rethink law completely, so it is possible to promote broader social goals of justice and equality. Feminist methods seek to expose the biases from which international law is written and particularly the notion that women are more vulnerable than men and need special protection under the law. Feminist theorist Hilary Charlesworth
Hilary Charlesworth
Hilary Charlesworth is considered as the pioneer in feminist international law scholarship. Her groundbreaking book titled The Boundaries of International Law: A Feminist Analysis has been awarded the Certificate of Merit by the American Society of International Law in 2001...
criticizes the dialogue of women as victims in need of protection from both men and international law. Additionally, she argues that the irony of the dominant language is that while it aims to especially protect women, the emphasis is on the protection of her honor and not on the protection of her social, cultural and economic rights.
LGBT Legal Theory
Lesbian, Gay, Bisexual, and Transgender/TranssexualLGBT
LGBT is an initialism that collectively refers to "lesbian, gay, bisexual, and transgender" people. In use since the 1990s, the term "LGBT" is an adaptation of the initialism "LGB", which itself started replacing the phrase "gay community" beginning in the mid-to-late 1980s, which many within the...
(LGBT) International Law Theory is a critical school of thought that continues to develop as the shortcomings of international law are realized, in regard to the integration of queer theory
Queer theory
Queer theory is a field of critical theory that emerged in the early 1990s out of the fields of LGBT studies and feminist studies. Queer theory includes both queer readings of texts and the theorisation of 'queerness' itself...
into international law theory. While human rights conventions have recently begun to generalize in regard to equality and its recipients, in the past, any discussions of sexual orientation
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
and gender identity
Gender identity
A gender identity is the way in which an individual self-identifies with a gender category, for example, as being either a man or a woman, or in some cases being neither, which can be distinct from biological sex. Basic gender identity is usually formed by age three and is extremely difficult to...
have gone largely untouched. The movement of LGBT International Law Theory centers on the inclusion and awareness of LGBT rights (and protection of persons), as well as the integration of queer theory within the realm of international law.
As LGBT theory has become more prominent in scholarly works, international court
International court
International courts are formed by treaties between nations, or under the authority of an international organization such as the United Nations — this includes ad hoc tribunals and permanent institutions, but excludes any courts arising purely under national authority.Early examples of...
s and international law organizations
International organization
An intergovernmental organization, sometimes rendered as an international governmental organization and both abbreviated as IGO, is an organization composed primarily of sovereign states , or of other intergovernmental organizations...
(particularly the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
Council and the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
) have considered workplace discrimination on the basis of sexuality, issues stemming from the definition of family in regard to homosexual unions
Civil union
A civil union, also referred to as a civil partnership, is a legally recognized form of partnership similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights,...
, the position of
transsexuals
Transsexualism
Transsexualism is an individual's identification with a gender inconsistent or not culturally associated with their biological sex. Simply put, it defines a person whose biological birth sex conflicts with their psychological gender...
in the question of sexual orientation, the need for recognition of LGBT rights in regard to general health advocacy and the HIV/AIDS crisis, the inclusion of and LGBT advocacy group within the UN (with advisor status), and the ongoing active persecution of people engaging in homosexual acts, among other issues.
According to scholar Nancy Levit, the challenges for gay legal theory are twofold: to move away from the frailties of both formal equality and antisubordination theories, and to develop ways of representing sexual minorities that will make them more acceptable, if not valuable, in a broader cultural context, that is the critical body of LGBT International Law Theory.
Roman Law in International Law
The idea of international law in Roman times is a complicated one. For, not only does the Roman RepublicRoman Republic
The Roman Republic was the period of the ancient Roman civilization where the government operated as a republic. It began with the overthrow of the Roman monarchy, traditionally dated around 508 BC, and its replacement by a government headed by two consuls, elected annually by the citizens and...
and following empire itself dominate a long period of time in history, but also the very debate over whether or not the term "international law" is an applicable term is not yet decided. Many scholars and authors define international law as "the law governing relations between sovereign, territorial states."
Any attempt to find a similar parallel in Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
would find a logical starting point in the ius gentium (the laws of nations). The ius gentium began as a Roman recognition of like legal practices and institutions (such as slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
) that was found at that time in most states. This brand of law was in fact private law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
in itself and mainly dictated the way in which the Roman state was to deal with individual foreigners, not entire states. However, when citizenship
Citizenship
Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...
was granted to all free men in the empire in 212 A.D. ius gentium ceased to cling to its original definition and instead was applied to states as a whole. Some semblance of modern international law can therefore be found in this shift. The actual extent of these origins and their relevance to modern law is a topic that has not yet been approached in any depth.
Third World Approach
Third World Approaches to International Law (TWAIL) is a critical approach to international law that is not a "method" in the strict sense of questioning "what the law is". Rather, it is an approach to law that is unified by a particular set of concerns and analytical tools with which to explore them. It is an approach that draws primarily from the history of the encounter between international law and colonized peoples. TWAIL shares many concepts with post-colonial studies, feminist theoryFeminist theory
Feminist theory is the extension of feminism into theoretical, or philosophical discourse, it aims to understand the nature of gender inequality...
, Critical legal studies
Critical legal studies
Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....
, Marxist theory and critical race theory
Critical race theory
Critical Race Theory is an academic discipline focused upon the intersection of race, law and power.Although no set of canonical doctrines or methodologies defines CRT, the movement is loosely unified by two common areas of inquiry...
. TWAIL scholarship prioritizes in its study the power dynamic between the First World
First World
The concept of the First World first originated during the Cold War, where it was used to describe countries that were aligned with the United States. These countries were democratic and capitalistic. After the fall of the Soviet Union and the end of the Cold War, the term "First World" took on a...
and Third World
Third World
The term Third World arose during the Cold War to define countries that remained non-aligned with either capitalism and NATO , or communism and the Soviet Union...
and the role of international law in legitimizing the subjugation and oppression of Third World peoples. TWAIL scholars try to avoid presenting the "Third World" as a unified, coherent place but rather use the term to indicate peoples who have the shared experience of underdevelopment and marginalization.
Contemporary TWAIL scholarship has it origins in works of jurists such as Georges Abi-Saab
Georges Abi-Saab
Georges Michel Abi-Saab is an Egyptian international law specialist.- Education :Professor Abi-Saab graduated in law from Cairo University and pursued his studies in law, economics and politics at the Universities of Paris, Michigan , Harvard Law School , Cambridge and Geneva...
, F. Garcia-Amador R.P. Anand, Mohammed Bedjaoui
Mohammed Bedjaoui
Mohammed Bedjaoui is an Algerian diplomat and jurist. He has served as Algeria's ambassador to France and the United Nations among other places. He has also served as a judge on the International Court of Justice and as President of Algeria's highest judicial authority, the Constitutional Council...
, and Taslim O. Elias. Over the years, several Western scholars have been sympathetic to the Third World's position and made important contributions to this body of scholarship, and these include, scholars such as C.H. Alexandrowicz, Richard Falk, Nico Schrijver and PJ.I.M. de Waart. David Kennedy
David Kennedy
David Anthony Kennedy was the fourth of eleven children of Robert F. Kennedy and Ethel Skakel Kennedy.-Life:...
and Martti Koskenniemi
Martti Koskenniemi
Martti Antero Koskenniemi is an international lawyer and a former Finnish diplomat. Currently he is professor of International Law in the University of Helsinki and Director of the Erik Castrén Institute of International Law and Human Rights. He is well known for his critical approach to...
have also contributed support in their own work.
TWAIL as a loose network of scholars has had three conferences thus far. TWAIL I was held at Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
in March, 1997. TWAIL II was held in October 2001 at Osgoode Hall Law School
Osgoode Hall Law School
Osgoode Hall Law School is a Canadian law school, located in Toronto, Ontario, Canada and affiliated with York University. Named after the first Chief Justice of Ontario, William Osgoode, the law school was established by The Law Society of Upper Canada in 1889 and was the only accredited law...
. TWAIL III was held at Albany Law School
Albany Law School
Albany Law School is an ABA accredited law school based in Albany, New York. It was founded in 1851 by Amos Dean , Amasa Parker, Ira Harris and others....
in April 2007. TWAIL 2011 will be held at the University of Oregon School of Law in October 2011.
A 2009 article by Johnson argues that the SADC Parliamentary Forum’s Model Law on HIV is, at the same time, in conformity with international human rights law and has the capacity to advance TWAIL objectives via regional coalitions of leadership and jurisprudence in response to an epidemic with its own regional characteristics.
A 2010 article by Al Attar and Miller and argues that the Bolivarian Alliance for the Americas (ALBA) may present a potential for developing TWAIL in practice, describing ALBA as having "a cohesive counter-vision of international law rooted in notions of complementarity and human solidarity".
Trade, Law and Development
Trade, Law and Development
Trade, Law and Development is an academic journal of legal and related interdisciplinary scholarship published by an independent student group at National Law University, Jodhpur.- Overview :...
has published a Special Issue on TWAIL for Spring 2011.
External links
- American Society of International Law, International Legal Theory, volumes 1-12 (1995–2006).
- TWAIL III http://www.albanylaw.edu/twail/