08 Feb On Is International Law International? ‒ Where Next?
[Paul Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and John V. Ray Research Professor of Law at the University of Virginia.]
First a disclosure. I have cheered on this project since Anthea Roberts began working on it. We, along with Pierre Verdier and Mila Versteeg, have collaborated on a book of essays as well as an American Journal of International Law symposium that explores the concept of comparative international law across many dimensions. I read earlier manuscripts with interest and enthusiasm. I am, in short, as on board with the project as anyone can be.
What this book does is expose the forces that bring about systematically different cultures of international law in different parts of the world. The point is not simply that some people think differently about the substance and scope of international law. Rather, the book establishes that these differences are systematic and align with traditional territorial divisions. Even accounting for normal discord and dispute among specialists, international law varies from place to place.
This fundamental point, which I regard Roberts as having proven convincingly, points in several directions at once. It invites constructivists to consider how differences in the production of knowledge among cultures leads to differences in the construction of international law. Alternatively, it provides those of us with a rational-choice, international-relations bent to consider how these different cultures relate to differences in state (and regional) interests, and how these interests then shape international law.
This observation opens the door to what the book does not do. Roberts shows us how the production of knowledge and the culture of professional expertise varies within the international law world. This is a tremendous contribution, and makes the book essential reading for anyone wanting to know what international law does in the contemporary world. One might think that these cultural differences produce differences in the content of the international law espoused. What Roberts does not do, however, is explore the instrumental implications of her central findings. She does not seek to connect specific variations in claims about international law to specific facets of the culture out which those claims arise.
There are many good reasons why Roberts does not do this. Thick description, which in the most general sense is what this book does so laudably, strips away preconceptions and mystification. It is, when done well as here, prior to any instrumental analysis. Doing it successfully is a great challenge by itself. If nothing else, the book undermines hegemonic pretensions, which is to say (mostly) the largely implicit assumption of U.S. and European international lawyers that they have successfully achieved cosmopolitan takeoff and thus speak for the entire world when they pronounce on questions of general international law. Adding on a second layer of analysis accounting for the effect of specific cultures on their products is a significantly different project. One cannot (and I do not) fault Roberts for not writing a different book.
Those of us who benefit from her project, however, might well feel the need to figure out what comes next. Now that we know how different cultures of international law are formed, how should we respond? I can think of several possibilities.
One reaction is to treat the book as stripping off the mask of universalism on the part of those who work in the empire’s center (to borrow the language of dependencia theory, for readers old enough to remember that trope) and to draw the obvious conclusions. The enlightened international lawyer should fight for the periphery, demanding the inclusion of voices from the traditionally marginalized communities as well as the suppression (through critique) of the dominant mindset. Demystification thus removes a barrier to international justice.
Wielding Is International Law International? as part of a social justice warrior’s armament is a plausible use of the book, but hardly the only possibility. Stripping away the pretense of universality from the center’s proclamations is useful, but this move alone need not destroy the case for the version of international law that the center espouses. What deep description does not do ‒ indeed, it cannot do ‒ is create a normative framework for assessing particular regimes. It removes the underbrush to allow the observer to better comprehend the social phenomena in play, but it does not supply the framework for evaluation. The presence of mystification alongside the center’s claims may hint at a certain insufficiency ‒ If the claims about international law are already attractive, why pile on with a false picture of universality? ‒ but does not itself prove the case. We still need an argument that explains how particular instances of inclusion promotes justice. Such arguments can be made, but they should not be assumed.
One might instead use the book as a means of teeing up particular empirical projects. To take an area of great interest to me, what explains the similarities and differences between Chinese and Russia claims about international law? Roberts contrasts the insularity of Russian educational and publication practices with the remarkably cosmopolitan approach of Chinese international lawyers, as indicated by both where they go to school and where (and in which language) they publish. Do these differences make a difference in what Russian and Chinese specialists say about international law? The recently published joint principles on the promotion of international law suggest substantial overlap in the Sino-Russo approach to big-picture issues in general international law. Some of these principles, such as the fundamental importance of state sovereignty, are all the more interesting because they depart from European and U.S. postures. Yet in some subfields, such as trade and investment, China’s specialists seem to have embraced differences in scope and substance from the version of international law typically promoted by Russians. Is it culture, interest, or some mix of the two that explains this combination of commonality and difference?
Others might explore other implications. Does the common European framework (admittedly under great stress at the moment) mute what otherwise might be obvious differences in claims that British and French lawyers make about international law, given the significant cultural differences that Roberts documents? Or is there manifest distance between their claims, notwithstanding their (for now) shared European commitments? Or do they mostly agree, the cultural chasm notwithstanding? To take another example, what distinguishes claims about international humanitarian law, both as to content and the rules of recognition, between the P5 states and rich pacifists such as Germany and Switzerland? Culture, or distinct military tasks and capacities?
Is International Law International? doesn’t answer these questions. Rather, what it does is make the questions possible. This is a great achievement. The community of specialists should respond first with admiration, second with humility, and third with a renewed commitment to exploring the link between disaggregated cultures and the international law that results.