Cheng Book Roundtable: Professor Howse Responds to Professor Cheng

by Robert Howse

[Robert Howse is the Lloyd C. Nelson Professor of International Law at NYU School of Law]

When International Law Works is a wide-ranging work with many important and original claims and arguments. Particularly congenial is the approach that the real world effects of international law be examined not through narrow studies of rule “compliance” but in a manner that takes into account the importance of the moral meaning(s) of international law. Professor Cheng’s colleague Ruti Teitel and I have pleaded for such a broader approach-transcending the fact/value distinction in a certain way-in our own recent scholarship (see particularly “Beyond Compliance: Rethinking Why International Law Really Matters.“)

In my first contribution to our exchange, I want to focus on one particular aspect of Professor Cheng’s argument: his assertion that international judges ought to be guided by moral considerations in their decisions. Professor Cheng seeks to reconcile such a view, inspired by Ronald Dworkin in part, with what he calls “legalism,” the importance of international judges carefully and faithfully applying the relevant legal material in order to solve a dispute.

According to Professor Cheng, exceptionally a careful and faithful application of the legal material will result in ambiguity; it is at this point that moral considerations may enter properly in order as it were to tip the balance in favor of one particular interpretation.

When we turn to the Vienna Convention on the Law of Treaties, however, we see that (at least with respect to conventional law) a different method is suggested where ambiguity remains after applying the normal sources of interpretation-namely, recourse to the travaux preparatoires, i.e. the evidence of the actual intent of the drafters. This raises the issue of to whom the international judge owes the duties that Professor Cheng describes–to the parties of the dispute, to all of the parties of a multilateral regime, to some ideal vision of international community, or perhaps to “humanity.” How moral considerations enter into international adjudication may well depend on the answer to this question of for whom and on behalf of whom the international judge decides.

Professor Cheng provides a partial answer in indicating that a function of the international judge is to clarify and develop the law beyond the settlement of the dispute at hand–thus her duty is not as such limited to the parties to the dispute. To revert to the case of conventional law, one of the aspects of interpretation according to Vienna Convention Art 31 is the consideration of the object and purpose of the treaty. Here, arguably, the international judge must already connect her own moral intuitions to the underlying morality of the treaty as disclosed by its object and purpose and, to go even further, its relation under 31.3(c) to other relevant rules of international law applicable between the parties, which non-controversially would include ius cogens as well as (normally) custom, at a minimum.

Even aside from 31.3(c), as Bruno Simma suggested in his opinion in Oil Platforms, treaty interpretation exists within a broader normative framework, a more general universe of international legal norms, which may be held together by a core morality of the international system.

I raise these points because I think it is important that Professor Cheng’s argument not be understood as saying that where law runs out the judge may engage in a Schmittean form of decisionmaking, based on whatever personal commitments she has. By bringing morality into interpretation at an earlier stage, one may avoid what appears to be a jettisoning of legalism at a later stage in the process of decision.

This relates to the need for a persuasive answer to the notion that legalism always on its own generates ambiguous or contingent/under-determined outcomes and therefore that in fact the “norm” is a decision based on the moral or political or gender or class biases of the decider. Here I think Professor Wilde’s remarks about TWAIL and feminist scholarship are quite pertinent.

Professor Cheng’s account of international adjudication understandably focuses on the ICJ. He appears to see adjudication by the WTO Appellate Body more through the prism of arbitration. And yet with unqualified compulsory jurisdiction, an explicit treaty-based mandate to clarify the law, and the Appellate Body’s strong assertion of the precedential weight of its decisions in the context of the multi-phased zeroing dispute, the AB is perhaps more of a “court” than the ICJ itself. And it would be valuable to consider the application of Professor Cheng’s view of international judging to the international criminal tribunals. An understanding of the morality of international criminal responsibility arguably pervades the interpretative choices of the judges, and is not limited to cases of legal ambiguity as such.

But it is refreshing to see a scholar who is deeply implicated in the international legal world, including as a practitioner and arbitrator, take issue with the uneasy combination of amoral positivism and unprincipled policy pragmatism that constitutes the dominant world view of a still important species of “mainstream” international jurist.

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