Cheng Book Roundtable: The Importance of Perspective – Reflections on Additional Frontiers

[Hari M. Osofsky is Associate Professor and 2011 Lampert Fesler Research Fellow, University of Minnesota Law School and Associate Director of Law, Geography & Environment, Consortium on Law and Values in Health, Environment & the Life Sciences]

I am grateful for the opportunity to participate in this exchange over Tai-Heng Cheng’s ambitious and thoughtful new book, When International Law Works. Opinio Juris enhances the international law dialogue by providing these opportunities for more informal, timely discourse on important topics.

As the final commentator in this interchange, I have had the pleasure of learning not only from the original text, but also from the conversation about it. I will attempt in my remarks to build from some of those threads in addition to reacting independently to the text. Like other participants, I will respect the form of this forum and not try to attempt a comprehensive analysis of the book. Rather, given the book’s grounding in the New Haven School’s policy-oriented jurisprudence, I will focus my remarks on how that approach’s ideas about participants in the international order and internal and external perspective, as well as the interactions between New Haven School and TWAIL scholars, might provide fertile ground for this book’s approach to be applied in additional ways.

Before considering such new frontiers, however, I want to acknowledge what this book achieves. First, at a conceptual level, it engages a staggering array of international legal theory and some of the most polarized debates within that to make a constructive contribution to a deeply fraught dialogue. Whether or not one agrees with all of the book’s precepts—as this interchange already represents, the book and its author invite an array of perspectives and thoughtful disagreement—it represents an important effort to move the conversation about the role of international law forward. Second, and more practically, it situates that theory in a diverse array of contentious and critical international legal issues and provides an approach for analyzing how a number of key decisionmakers have and should interact with them. Its analysis provides an opportunity to revisit past and current controversies and examine them through a new lens.

At its core, although the book grounds itself in a wide range of theory and attempts to find common ground in liberal and conservative accounts, it draws particularly from the New Haven School approach. As the book explains in its conclusion (p. 295–96):

Policy-oriented jurisprudence provides a way to ease the gridlock by situating important insights from other theories of international law within a framework for understanding and refining the international legal system to solve actual problems. The core thesis of this book is that in the central case of the international legal system, decisionmakers identify relevant prescriptions, which may take the form of law, guidelines, principles, articulated practices, or even just shared expectations. They then interpret and apply those prescriptions to the facts. Finally they have to make a claim about which interpretation to follow, or to ignore or change the prescriptions all together. Other decisionmakers respond to that claim with their own claims interpreting prescriptions. Eventually, decisionmakers may agree on an interpretation, resulting in an outcome in an international problem. This consensus on relevant prescriptions helps to guide further conduct and shape outcomes in other problems, subject to further interpretations by decisionmakers.

Given that grounding, I found the interchange among Tai-Heng Cheng, Ralph Wilde, and Rob Howse about TWAIL and other critical approaches quite interesting. That conversation in many ways mirrors a long-standing dialogue between New Haven School and TWAIL scholars about the way in which power and inequality should enter the New Haven School discourse.

As I have analyzed in previous writing on the New Haven School, in which I explored how the discipline of geography could add to its conceptual approach, TWAIL scholars have questioned both the ways in which differential positionality can impact experiences of ostensibly universal concepts like “human dignity” and how “authoritative decisionmaking” might be used to undermine sovereignty of “third world” states. I argued that while the discipline of geography might not be able to resolve differences in perspective, it can serve as an important tool in contextualizing the dynamics at issue.

My perspective on the interchange here is quite similar. I would be interested to see how Professor Cheng’s analysis might be used to analyze decisionmaking around international law from the perspective of those with less power in the international legal system and how their geographic context impacts their options and approach. For example, in the context of judges, I think about some of the situations in which regional human rights tribunals and even domestic court judges have found environmental rights violations through analyses well-grounded in international legal analysis but found themselves limited in their ability to change the morally problematic situations on the ground. With respect to each of the key actors that the book considers, I think there are opportunities to analyze the situations discussed and additional situations from the perspective of those who have less power and consider when international law works and does not work for them; New Haven School conceptions of internal and external analysis could be useful in such an account. This suggestion is not a critique of Professor Cheng’s thoughtful application of his theory to a variety of important situations and actors, but rather an idea for where future inquiry could be helpful.

In a related vein, I would be interested in future work to see how Professor Cheng’s approach might be used to analyze the behavior of additional actors that lack formal power in the international legal system but play a critical role in international lawmaking. The New Haven School, for example, identifies seven participants in international decisionmaking: individual human beings; nation-states; intergovernmental and transnational organizations; transnational political parties and orders; transnational pressure groups and gangs; transnational private or official associations oriented towards values other than power; and civilizations and folk cultures. Given the constraints of an already-lengthy monograph, this book only treats some of these participants in depth while acknowledging others. I would be excited to see how Professor Cheng might deal with additional participants in depth. I think in particular, for instance, about the key role that multinational corporations and transnational coalitions of local governments are playing in international lawmaking on climate change. With respect to the second group, I have been intrigued to see the ways in which local governments are not only making multi-level agreements among themselves, but also using their coalitions’ observer status to influence the text of agreements created by nation-states. The environmental context is also interesting for the ways in which it may bring challenges to the universal values listed by Professor Cheng on p.96-98 from a non-critical perspective; many environmentalists decry the pro-growth values espoused at the end of the list, and argue for a more sustainable, less consumption-oriented approach to the good life.

I’ll end by noting that these various suggestions only reinforce the value of Professor Cheng’s contribution. His book is rich in conceptual and doctrinal detail and provides the seeds for so many additional, important inquiries however he builds on it in the future. I have learned a great deal from his work and look forward to the ongoing dialogue about this book and his future contributions.