[Ralph Wilde is a Reader at the Law Faculty at University College London, University of London]
It is a great pleasure to participate in the debate about this important and ambitious book. Tai-Heng Cheng deserves our attention for his impressive attempt to grapple with the fundamentals of international legal theory, and to do so as so few others seem willing to nowadays, with reference to a wide range of case studies involving the actual application and enforcement of international law.
As befits the Opinio Juris blog format, what follows is not a comprehensive review, but rather a series of brief and impressionistic observations about particular aspects of the book. I have chosen to address some of the fundamental assumptions from which the thesis proceeds, and to raise some questions about them, in the knowledge that this will be followed by posts from others, including responses from the author, which provide an opportunity for my views to be challenged and supplemented by comments on different aspects of the book.
Tai-Heng Cheng makes his argument in the context of certain recent US debates purporting to address the fundamentals of international law. Specifically, what he describes as the ‘conservative’ critiques offered by Goldsmith and Posner, and the ‘liberal’ responses to such critiques from scholars such as Guzman and O’Connell. Cheng seeks a return to the ‘policy science’ or ‘New Haven’ theory of international law, in the tradition of McDougal, Lasswell, Reisman and Higgins, which focuses on the process whereby decision-makers in the international system arrive at choices informed by mutually-shared expectations about appropriate conduct, rooted in shared, universal values.
Cheng correctly identifies the significant common ground in the recent US theoretical debates: that, in their view, international law can sometimes be effective, and can sometimes be just/moral. His thesis seeks to bring to bear the ‘process’ understanding of international law, ‘to make the international system as effective and good as it can be’ (page 8). In this way, then, although Cheng is drawing on theoretical ideas that have a much older provenance than the post-millennial US theoretical debates, he is re-stating these ideas partially as a response to the debates, as compatible with the points of agreement within them, and, moreover, as a way of ‘moving the discussion forward’ by seeking to realize more of international law’s potential revealed by the points of agreement. We are being offered a way of thinking about international law that allows us to take the most useful insights from recent US theoretical debates, and also allows us to move on from the seeming impasse that these debates, read in isolation and on their own terms, seem to suggest.
In his introduction, Tai-Heng Cheng claims that international law promotes universally-desired values ‘such as global banking standards and agreements that enable capital to move across borders’. Because these values are universally-desired, decision-makers ought generally to obey them. However, some international law prescriptions threaten basic values or essential interests, such as those which ‘prohibit a government from taking measures necessary to defend a people against a foreign threat’. In this case, ‘decision makers may legitimate choose to disobey’ them. It is, of course, a cliché to critique the New Haven school for conceiving norms to be compatible with ‘universal’ standards when they might more correctly be understood to reflect one view of interests conceived as of particular benefit to the US (see, e.g., Professor Cheng’s discussion of these critiques at pp 50-3, 65, 70-1). Indeed, there are many in the world who would not regard the first set of Tai-Heng Cheng’s standards as universally desirable, and also those who take the view that the international legal rules on the use of force referenced in the latter example do not manifest the problems indicated and, if anything, are capable of providing justification for recourse to war that is excessive and therefore illegitimate.
It is possible to ignore, or at least downplay the significance of, these and other alternative perspectives if one chooses to start, as Tai-Heng Cheng does, from the common ground assumed in the recent US theoretical debates. Indeed, Professor Cheng sometimes universalizes out his diagnosis of the recent debates, to contemporary international legal thought generally. He explains that he is ‘starting from the points of agreements among scholars that international law is partially effective and partially good’ (p. 8). This starting point is, of course, necessary for the enterprise of accentuating the positive.
As Tai-Heng Cheng acknowledges, however, the state of contemporary international legal scholarship is much richer and diverse than an exclusive focus on the recent US ‘conservative’/’liberal’ debates would suggest. It is one thing to argue that US elites might be able to agree on what is ‘effective and good’ about international law as far as US interests are concerned, and, indeed, such an argument might invoke Professor Cheng’s characterization of the rules on banking standards, capital flows and the use of force. But this is a story about agreement between certain scholars in the US. International legal thought more generally does not manifest agreement of this sort.
Tai-Heng Cheng claims that ‘every careful scholar would observe that international law can be effective and just, but is not always so’ (page 8). But some of these scholars are so doubtful as to the prospects for greater effectiveness and justice that they would regard Professor Cheng’s enterprise of seeking to make it more so as a futile and dangerous diversion from activity that has a greater prospect of bringing about global justice. Tai-Heng Cheng claims that ‘every reasonable scholar would also agree that it would be better for international prescriptions to be more moral than less moral’ (page 8). But some scholars would also argue that Professor Cheng’s assumption that it is possible to realize this aspiration by building on the existing international legal and political system fails to account for the way in which the system is constructed so as to create impediments to this enterprise.
The book offers an impressive, sure-footed and wide-ranging discussion of international legal theory. However, when it comes to feminist theory, and post-colonial or third world approaches to international law (TWAIL), two of the most important developments in international legal thought of the past decades, there is simply a footnote reference which acknowledges that such approaches ‘question the normative underpinnings of international laws as insufficiently promoting the interests of certain groups’, but chooses not to discuss them further because they ‘do not address the choices that must be made in conceptualizing international law’ (page 47 note 125). Yet in the chapter containing that footnote, the book does mention the critiques made by others about the particularity of the values asserted to be ‘universal’ in policy science theory. When the canonical texts of policy science scholarship were being written, there was no TWAIL or feminist scholarship in international law. The situation is very different now. Whereas then the critiques of policy science’s claim to promote universal values played out largely in terms of discussions of US hegemony (which Cheng points out resurfaced in the critiques by some like Orakhelashvili in the context of the war on terror), surely now account needs to be taken of the much broader critiques that could be made drawing on feminist and TWAIL ideas, which have exposed brilliantly how in various ways tropes of universalism in international law have been highly effective in concealing the way in which structures and norms do not serve the interests of all people equally and fairly.
Throughout the book, as befits the policy science orientation, Professor Cheng hopes to improve how international law will address ‘international problems’. But TWAIL and feminist scholarship reminds us that we must interrogate whose interests are at stake when particular problems are identified, classified, ranked in importance, and ‘responded’ to. Here is the list of ‘urgent problems’ that ‘stand out’ to Tai-Heng Cheng: ‘internecine wars and Islamic terrorism, on the one hand, and disruptions to global financial markets and the world economy, on the other’ (p 71). Of course, it is trite to say that we can all disagree on which problems deserve to be in this special category, and easy to suggest candidates that are as important, if not more so than, those posited. The point is that we need to acknowledge that what is valuable for some can be catastrophic for others and, as a result, any attempt to theorize a system of international law that takes as its starting point certain accepted values or problems needs to interrogate at length the question of whose interests are at stake.
We have to put issues of economic, social and political inequality and power imbalances at the very centre of thought about international law, given the legal system’s ability to be, and clear historical track record in being, more part of the problem than the solution on these issues. In other words, even if international law ‘works’, for whom does it work?