10 Jul Congratulations to Anthea Roberts …
On her new article in the latest AJIL, “Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States.” Although not the expert Roger and others are on investment law, I’ve read this closely and think it is a blockbuster article. Anthea Roberts, currently a junior professor at LSE, is one of the brightest and best of the young-young generation of international law scholars. Here is the abstract from AJIL (it is behind the subscriber wall and not available on SSRN), Vol. 104, No. 2, April 2010. Highly recommended.
States entering into investment treaties establish dual roles for themselves as treaty parties (with an interest in interpretation) and actual or potential respon- dents in investor-state disputes (with an interest in avoiding liability). By viewing states primarily as respondents rather than also as treaty parties, investment tri- bunals often ignore the relevance and persuasiveness for interpretation of those parties’ subsequent agreements and practice. The approach proposed here seeks to recalibrate interpretive power between states and tribunals by increasing con- sideration of such evidence.
One of the reasons I regard Anthea as such an important rising star is her methodology in international law. It takes international law seriously, as law, as a rule of decision, mechanism of decision, method of decision, in a way that, for example, I – umm – don’t. Well, that’s not entirely true. I do take it that way in exactly this kind of area – investment treaty litigation and arbitration, all sorts of matters of WTO materia. But I don’t think it carries over to the other stuff of international law, pure public international law. Anthea Roberts, I take it from her writings on customary law and other things, has a complicated view of all that. But the nature of her method in all these areas is to deal with law through an internal methodology. That makes her something of an outsider to American academic public international law scholarship, in which the methodology is very often external – even when reaching normative political conclusions quite antithetical to my own.
We Americans tend, at least by comparison to scholars elsewhere, to believe that the method has to have an important external component to it – and that is so, irrespective of what kinds of normative political conclusions one reaches. We Americans tend to yawn at the formalism and positivism that holds in many other places, partly because our training in law tends to reject it as insufficient for law as such, and partly just because we have all been trained in some other undergraduate discipline that automatically tends to draw us into external methodologies.
A scholar like Anthea Roberts, however, is that rare academic who is able to bridge both those worlds. She is not trapped within the narrow circle of positivism; yet she is grounded in legal texts and all that as law in a way that many American scholars do not quite achieve – I include myself, of course – except perhaps in very particular areas such as the minutiae of the ICL criminal tribunals or stuff related to international economic law where the law does indeed appear to be the dominant mechanism of decision. Her academic upbringing allows her to engage deeply with the external methodologies while still remaining a lawyer’s lawyer in an academic sense as well. Put another way – to go to some of my other posts expressing concern about the fragmentation of sects of international law – she is a communicant at a certain table of worship, but unlike many others in the sectarian world of international law, she is able to see and find more ecumenicism across the sects than many others.
(Yes, clearly a fan. I also hope it’s clear I’m praising her for a certain kind of cross-cutting methodology; unlike me, she is not a centrist conservative; it’s not her politics I’m addressing here, it’s the method she applies with such rigor in her writing. But I also remain highly interested as a general matter in the methodology discussions that we had surrounding public international law a couple of years ago here at OJ. I suggested at the time plotting on some kind of two axis system, political commitments (ranging from sovereignty to liberal internationalism) on one side versus methodology (ranging from normative idealism at one extreme to rational or empirical descriptivism at the other). I also proposed a third axis, running to how internal or external to law one’s methodology proposed to be. It’s more complicated than that, and things don’t exactly fit on linear axes. But I persist in thinking there’s something to it, and not unrelated to the fragmentation of public international law.)