Is International Law….Law?

One of the many reasons I am so pleased that Opinio Juris can host this discussion on Anthea Roberts’ new (and award-winning) book is that it speaks directly to and about this blog’s core audience: students, scholars, and practitioners of international law from all over the world.  When we founded this blog in 2005, we hoped to use the internet to open conversations with other scholars in the United States.  We soon found that the global reach of this blog allowed us to engage scholars and practitioners all over the world, rather than just in the United States.

But over the years, we also learned that the “global” international law audience is narrower than it sounds. Our readership was and is heavily based in the United States, Europe, Canada, Australia, and New Zealand.  This relatively narrow global readership is probably explained (as I learn in Roberts’ book) by the closer ties of language, culture, and academic exchange that exist among “Western” international lawyers.  I also realize now that this is part of the phenomenon of different clusters of international law around the world that is so wonderfully documented and analyzed in Roberts’ remarkable new book.  Her study does more than any other single work to describe and explain a state of affairs many of us in the international law world had sensed but could never fully understand.  There is no doubt in my mind that Roberts has launched an important new challenge to the international law world that even calls into question the idea of international law as law.

Roberts’ prior work, which has now been developed and amplified in her new book, has also influenced my own recent research and writings on China.  The Middle Kingdom is extensively studied and analyzed in Roberts’ work, and it is a key player in her story about how international law seems to differ in meaningful ways across national borders and among ideological and cultural clusters. I am especially grateful that she sought in Chapter 5 to include China’s reaction to the arbitration case brought by the Philippines as part of her case study in how international lawyers can fall into different “silos.” Writing about that arbitration, as readers of this blog may be aware, has been a mild academic obsession of mine for years.

But I do not draw quite the same lessons from this case study as she does. In my view, application of her comparative approach to international law necessitates taking a neutral stance on what might be a better or worse interpretation of international law.  While I agree with one of her main claims – that there are many divergent versions of international law arising out distinct national and regional clusters – I am not sure all such divergences should be treated as good faith differences.  In the case of the South China Sea arbitration, I believe Roberts underplays the importance of how governments can use international law (and international lawyers) as tools in their global diplomatic and public relations campaigns.

Roberts specifically notes how Chinese international lawyers sought to “traverse [] divides” by publishing their views on the South China Sea arbitration in English to reach a global rather than simply a Chinese audience. This is true. But as she also understates the context of these various international law essays. The unanimity among Chinese legal scholars (and practitioners) was an important part of the Chinese government’ broader media campaign to discredit and denigrate the arbitration award and the arbitration process. Their unanimity was trumpeted on various Chinese media sites. It is hard not to see the academic consensus in China as a product (at least in part) of the Chinese government’s influence and control. (Such consensus is also striking in comparison to the quite different anti-government reaction of US scholars to the US defiance of the Nicaragua ICJ judgment).

The Chinese government’s public relations campaign also included slanderous statements suggesting the South China Sea arbitrators had effectively been bribed, and that the Japanese nationality of the individual who appointed the arbitrators undermined the impartiality of the arbitral process. The silence of the Chinese international law academic community in the face of these outrageous statements is also evidence of how important the government can be in shaping a national international law approach.

Thus, while I am very much on board with Roberts’ overall project, I am enough of a practicing lawyer to wonder whether comparative international law can allow us to assess right and wrong interpretations of international law, and whether government intervention should affect such judgments of even relative legal correctness. While I was sympathetic to the argument that the South China Sea arbitral tribunal lacked jurisdiction, I was (and remain) deeply skeptical of the subsequent Chinese argument that the arbitral tribunal’s award is not binding.  I think this is not just a different approach to international law arising out of distinct national or regional silo, but it is a weak, self-serving politically necessary and ultimately ridiculous legal argument. I would grade a student’s paper badly for relying upon this argument. But does comparative international law counsel me to be more sensitive and self-aware of differences in approaches to international law?  Or should the fact that the Chinese government’s attention and control of this discussion lead me to step out of my comparativist role, at least for a moment.

For instance, I also tried to “traverse divides” by publishing my views on how “ridiculous” China’s argument is, both in English, and in Chinese (thanks to an excellent Chinese student translator and the good offices of the Financial Times Chinese edition).  I was gratified that I drew responses from Chinese scholars and I continued my foray in Chinese with this sur-rebuttal.  But the Chinese language version of my essay and sur-rebuttal in the FT was blocked by Chinese censors and have been disappeared from the Chinese internet. The rebuttals of my argument by Chinese scholars, oddly enough, remain available. My argument is not unknown to Chinese scholars, but it clearly has been disapproved of by the Chinese government. That matters, because it deters a robust and meaningful intra-Chinese discussion of an important legal issue.

In other words, while I agree there is real value in a comparativist approach, should such an approach at least discount for governmental intervention to control and shape a national approach? Does such direct governmental intervention undermine the authenticity of a distinct national and regional approach to international law?

For the purposes of her project, Roberts does not have to answer these questions.  But those of us who have benefited from the data and insights provided by her work will have to grapple with such dilemmas.  Roberts teaches us that international law is not very “international.” Does this mean it is also no longer “law”?  She doesn’t say so, but I wonder if her excellent work will ultimately point us down that road.