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

by Hari Osofsky

[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 WorksOpinio 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.

Cheng Book Roundtable: When Should a Court Not Decide (A Response to Professor Brown)

by Tai-Heng Cheng

I thank Professor Brown for his further application of the justificatory theory to the ICJ’s advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, another incident not covered in my book. I am glad he finds the justificatory theory useful in explaining the Court’s decision. As Professor Ku mentioned earlier this week, one test of the value of a theory is how well it explains the subject matter of the theory.

Professor Brown also rightly points out that the Court caused some difficulties in the Nuclear Weapons decision. It did not greatly clarify the law.

But other decisionmakers can also express a view on what they think the law is or should be, if the question is urgent enough. The UN General Assembly had already expressed its general views on the issue through non-binding resolutions. In a concrete problem that threatens international peace and security, the UN Security Council could issue a binding Chapter VII resolution.

But the advisory opinion in the Nuclear Weapons case and the decision in the Nuclear Test case raise a broader question of whether and when the ICJ should not decide a dispute.

In a prior book, State Succession and Commercial Obligations, I suggested that the ICJ’s refusal to seize jurisdiction in in East Timor Case was, realistically speaking, the closest it could get to an ideal outcome (pp.178-87). By not deciding that dispute between Australia and the absentee colonial ruler of East Timor, Portugal, the Court avoided disrupting the web of international and regional arrangements concerning East Timor, on which countless people in many countries involved in those arrangements relied, without accepting, as a legal matter, Indonesia’s occupation of East Timor.

In the Nuclear Weapons case, the ICJ’s refusal to definitively opine on the legality or illegality of the use of nuclear weapons was also perhaps appropriate. The paragraph that Professor Brown quotes was adopted by the court with seven votes in favor and seven against, by the President’s casting vote. It is difficult to imagine the court reaching any other conclusion, given its split.

In any event, the ICJ did issue guidance. It recognized the inherent right of states to self-defense, that the the UN Security Council, as the principal organ responsible for international peace and security, could issue binding Chapter VII resolutions, and that states can and have made collective decisions about nuclear weapons through treaties.

Another question to ask about the Nuclear Weapons case is whether the Court should have accepted the request for an advisory opinion. Article 65 of the ICJ Statute gives the Court discretion to decline such requests. In the request made by the UN General Assembly, the preamble repeatedly emphasized opposition to the use of nuclear weapons and completely ignored any competing considerations. This is understandable, because most General Assembly members states do not have nuclear weapons. But should the Court have accepted a request that so clearly sought to use a court of law, whose legitimacy depends on it being perceived to offer neutral advice, for the political purposes of some states to engage in what we now call “law-fare”?

From one point of view, the issue is not just whether the ICJ’s Nuclear Weapons advisory opinion caused palpable difficulties, but whether it should have accepted the request for an advisory opinion at all.

Cheng Book Roundtable: Should ICJ Judgments Be Effective? (A Reply to Professor Cheng)

by Chester Brown

[Chester Brown is Associate Professor at the Faculty of Law, University of Sydney]

Thanks to Professor Cheng for his thoughtful response. As a follow-up comment, this discussion should not conclude without mention of another hard case, being the International Court of Justice’s advisory opinion in Legality of the Threat or Use of Nuclear Weapons. In its advisory opinion of 8 July 1996, the ICJ (in)famously held that

in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.

The ICJ’s non liquet goes several steps further than a finding that it lacked jurisdiction, or that the claim was inadmissible (as was the result in the Nuclear Tests cases). The ICJ’s finding that it could not decide the issue would appear to bring together the two issues I raised in my post yesterday; when should issues of (i) morality, and (ii) effectiveness, feed into questions of treaty interpretation (or even finding the applicable law)? This justificatory framework would appear capable of explaining this outcome (just as it might be used to explain the result in the Nuclear Tests cases), but the difficulties posed by this case were palpable.

Cheng Book Roundtable: Should ICJ Judgments Be Effective? (A Response to Professor Brown)

by Tai-Heng Cheng

I am grateful to Professor Brown’s careful summary of the thesis of When International Law Works.

I should, however, make a few clarifying points about my analysis of some international incidents. Professor Brown, with gentlemanly understatement, notes that “some will have their eyebrows raised” by my analysis.

Regarding Loewen v. United States, I confess I am rather ambivalent about the award. In earlier scholarship, I excoriated the NAFTA award. In that dispute, a Canadian company brought NAFTA claims against the United States after a Mississippi court permitted racial biases and other due process violations to infect the trial involving the Canadian company. Nonetheless, the Loewentribunal declined jurisdiction against the United States on highly technical grounds.

In When International Law Works, I revisited the Loewen award to see if it is completely beyond the pale under my justificatory theory. I concluded that if it is true that the U.S. judge appointed to the tribunal had ex parte communications with the U.S. Department of Justice, there can be no redemption for the award.

But if this allegation is untrue, and if one accepts that the tribunal’s legalist reasoning is not contrary to applicable laws (even if it strained their interpretation), then perhaps considerations about the long-term viability of NAFTA, as well as the impact of an adverse decision against the United States under the political climate prevailing at that time, might properly come into play.

Cheng Book Roundtable: Dr Chester Brown responds to Professor Cheng

by Chester Brown

[Chester Brown is Associate Professor at the Faculty of Law, University of Sydney]

In international life, decision-makers face difficult problems on a regular basis. What should decision-makers do, for instance, when international rules that “promote minimum world order and universally-desired values” run counter to, or threaten, “basic values or essential interests of communities” that those decision-makers serve (p. 2)? Are decision-makers entitled to disregard, or disobey, such international rules, or must they comply with them?

This is the immensely practical but also theoretically complex question confronted by Professor Cheng in his book. For Professor Cheng, such difficulties cannot be resolved by the persistent debate as to whether “international law is really ‘law’”. He is highly critical of that debate, and dismisses those who continue to engage with what David Harris describes as a “standard sherry party question” (Cases and Materials on International Law, p. 5) as not providing “all the reasons for obedience or disobedience” (p. 2). Cheng sees the real issue as being “what decision-makers should do about international law, whether or not it is law” (p. 2). The book addresses this issue through the lens of various “decision-makers”, being international judges (chapter 4), arbitrators (chapter 5), regulators (chapter 6), legal advisers (chapter 7), and officials (chapter 8).

The essential thesis of the book is that when such decision-makers disobey international law, they “ought not to claim a unique exception for themselves”, as that only serves to encourage others to follow suit and act inconsistently with the relevant rule; rather they should “explain their reasons for disobedience”, in order to permit other decision-makers to decide if those reasons have any validity, and expectations of appropriate conduct for the future can be adjusted (p. 2). Professor Cheng refers to this as a “justificatory framework to help decision-makers consider relevant prescriptions and what they ought to do.” The approach is described as “justificatory” as it will assist in “shaping the international legal system to more effectively achieve good outcomes in international problems and to provide reasons to promote and obey prescriptions” (p. 13). In particular, in providing reasons for complying or not complying with a particular rule, decision-makers can avoid “arbitrary feedback loops” (p. 15). Professor Cheng argues that “[t]his process can help adjust the international legal system to contemporary realities while avoiding unjustified disobedience and disruptions” (p.2). It is key to the book’s thesis that law is characterised as an “interpretative process intertwined with morality” (p. 16); this approach is perhaps unsurprising, as Professor Cheng is a product of the New Haven School, having studied under Professor Reisman at Yale University.

Cheng Book Roundtable: Morality and Legalism in Judging (A Response to Professor Howse)

by Tai-Heng Cheng

My thanks to Professor Howse for his comments on When International Law Works. We have debated our respective views on state succession in our published scholarship for half a decade. Those exchanges have been intellectually rewarding to me, and so it is a pleasure to broaden our public discussions to international legal theory more generally.

Professor Howse accurately summarizes my view on judging. International judges, like other decisionmakers, should be guided by moral reasoning. The first moral obligation of judges is fidelity to legalism. Interpreting rules of law strictly is crucial as a moral matter because it promotes minimum world order. Further, the decisionmaking authority that states allocate to judges is not unbounded. It is limited to deciding legal disputes according to laws. It would thus be unethical for a judge to decide a dispute without regard to laws, or worse, based on his personal preferences.

But strict legalism, as Professor Howse points out and as I explain in my book, does not exclude moral reasoning about the content of the applicable laws and the practical consequences of applying them to the facts of the dispute.

When judges interpret treaties, applying moral reasoning is consistent with legal rules of interpretation. Although Professor Howse and I agree on this position, we get there by different routes.

In my view, Article 32 of the Vienna Convention on the Law of Treaties requires decisionmakers to turn to travaux when interpretation according to text in light of context produce a result that is obscure or ambiguous in meaning, or “manifestly absurd or unreasonable”. In most cases, in order to know if a result is absurd or unreasonable, in addition to other forms of analysis, a judge must engage in moral deliberation to know if the result would inadequately balance the values at stake or produce an outcome that shocks the conscience. Thus, moral reasoning is triggered in the rules of treaty interpretation throughout the process of interpreting, and not only after a final interpretation is reached.

I am a little unsure about what Professor Howse means when he says that the Vienna Convention’s requirement that treaties be interpreted according to their objects and requires the judge to connect her “own moral intuitions to the underlying morality of the treaty.” If a treaty explicitly provides in its preamble a purpose that does not optimize the competing values at stake, such as if an investment treaty was either one-sidedly in favor of investors or, conversely, host states, I do not think the “object and purpose” test allows the judge to rewrite the treaty.

I also think it remains to be seen to what extent Article 31(3)(c) brings in moral considerations through customary laws. Article 31(3)(c) requires judges to take into account, when interpreting a treaty, “applicable rules of law in relations between the parties.” In specific disputes, there could be a debate about which, if any, customary laws are applicable between the parties and that have not been displaced by the treaty at hand. In any event, moral considerations that are not expressed as customary laws cannot factor in treaty interpretation through Article 31(3)(c).

Returning to the situation where a judge, after applying moral reasoning, discovers that an interpretation of a treaty would lead to an absurd or unreasonable result, the question is what should he do next. If the travaux do not disclose a different interpretation, the judge cannot simply assign a more morally acceptable meaning to the treaty. But he may be able to displace the treaty if it violates jus cogens.

What if there are no applicable jus cogens and the judge must, if he is faithful to legalism, enforce the parties’ morally abhorrent treaty? That is a hard case. Here, the judge could dissent from the majority, append a separate opinion, or recuse himself (and explain why). In theory, there could be an extreme case where a judge’s moral obligations require him not just to recuse, but to reach a majority decision that corrects a gravely immoral treaty. In practice, it is difficult to think of such a paradigmatic extreme treaty that could not be corrected by prempting the treaty with jus cogens, as is required under the Vienna Convention.

The other hard case is where, after applying all the tools of legalism, the meaning of a treaty is still unclear. Here there may be no choice but to resolve that ambiguity through moral reasoning. I suspect judges already turn to exogenous considerations, whether they are aware of it or not. (Perhaps TWAIL and feminist scholars, and Professor Wilde, will agree with me on this point too). So we might as well apply moral reasoning – as opposed to preferences – in such difficult cases to avoid arbitrary decisions. The judge should also explain his reasons so that others can appraise the decision more fully. Other decisionmakers can then either accept or reject the decision. They can also decide whether or not to apply the reasoning to future disputes. Through this process of collective decisionmaking, the international legal system can evolve.

As Professor Howse points out, I tested my thesis against International Court of Justice decisions. I hope other scholars will test this framework in relation to other important courts, such as the International Criminal Court and the WTO Appellate Body.

In summary, legalist reasoning and moral reasoning should both factor in judging, but not in a haphazard or idiosyncratic way. Each constrains the other precisely to help judges avoid deciding cases based on their personal preferences or in an arbitrary manner. On this foundational point, I suspect Professor Howse and I are in hearty agreement.

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.

Cheng Book Roundtable: Are There Universal Values? (A Response to Professor Wilde)

by Tai-Heng Cheng

Professor Wilde’s comments are, as always, most thoughtful. If I understand the thrust of his post correctly, Professor Wilde is concerned that if I am to present a theory built on universal values, then I should examine carefully if the values I identify are indeed universal and if other important values are left out. In particular, Professor Wilde suggests that that I marginalized the TWAIL and feminist prespectives.

Professor Wilde correctly points out that I do not spend as much of Chapter Two discussing TWAIL and feminist theories as I do other theories. That is because the purpose of Chapter Two was to identify different conceptions of international law, not the values that are favored in each theory. TWAIL and feminist theories do not claim to present conceptions of international law that are different than positivism, international legal process, international relations approaches, or policy oriented jurisprudence. They instead emphasize different values. Thus while TWAIL and feminist theories are hugely important for their normative insights, they were not highly relevant to the research goals of Chapter Two.

This explanation of what I aimed to achieve in Chapter Two does not fully address Professor Wilde’s critique that the values I favor are not necessarily universal. He claims that “many in the world” would not find “global banking standards and agreements that enable capital to move across borders” to be “universally desirable.”

I find this supposition puzzling. Aside from irrational actors, I suspect that everyone would agree that the ability to move capital and banking standards are a good for minimum world order. Where people disagree is on what those standards should be, and whether capital is properly deployed.

But that is not a disagreement about the existence of banking standards or the ability to move capital per se. In policy-oriented terms, that is a disagreement about maximum world order, not minimum world order. I freely acknowledge that what maximum world order should look like remains indeterminate. That may be a question more appropriate for political discourse rather than legal process.

In Professor Wilde’s view:

We have to put issues of economic, social and political inequality and power imbalances at the very centre of thought about international law.

I do not disagree with this statement of some of the goals of international law. I urge Professor Wilde and readers to consider whether I have adequately accounted for these goals in my studies of incidents, ranging from ICJ’s resolution of a territorial dispute between Singapore and Malaysia to NATO’s bombing of Serbia to prevent genocide in Kosovo.

I also agree with Professor Wilde that there are scholars who believe that “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 [global justice].”

My response to this view is stated in the penultimate paragraph of my book:

This book begins where it begins, with the politics of theorizing. The account of the international legal system offered here has political consequences if decisionmakers adopt it. It rejects a blanket disapproval of international law and so will not resonate with trenchant exceptionalists or other scholars who radically challenge existing international power structures reflected in the international legal system. It also distances itself from an extreme liberal view that international law ought to constrain executive power even where acute national interests are at stake. Hopefully, most readers will agree with this book’s rejection of those extreme views.

Cheng Book Roundtable: Predicting, Explaining and Guiding (A Response to Professor Ku)

by Tai-Heng Cheng

I am glad that there is very little distance between me and Professor Ku. We both agree that legal theory does not have to be predictive to be successful. In this regard, Professor Ku finds my theory compelling “as a matter of politics and policy.”

Professor Ku implies, however, that may have set too low a bar in attempting to present an approach to international law that guides rather than controls. He contrasts my approach to positivisim, which he says “claims to control,” and rationalism, which he says “claims to predict.”

I wonder if Professor Ku assigns too much to the goal of positivism. In 1999, in the American Journal of International Law, Bruno Simma wrote:

Relying on a positivist conception of law does not necessarily imply subscribing to the view that there is only one correct answer to any legal problem. Rather, it means that we do not give up the claim to normativity and the prescriptive force of law. In many cases, law does provide guidance regarding what to do or not to do.

If one accepts Judge Simma’s summary of modern positivism, then positivism, like my theory, aims to “guide.” The relevant question is then not whether the goal of guiding is too modest, but whether each theory does a good job guiding.

I also wonder if Professor Ku’s description of rationalism’s goal is shared by the scholars he identifies as leading that field. Eric Posner and Jack Goldsmith explicitly state in The Limits of International Law:

We do not make fine grained predictions. . . . Our goal is, rather, to give a simple but plausible account for the various features of international law . . . in terms of something other than a state’s propensity to comply with international law.

In other words, rationalist theories and my theory try to explain how the international legal system functions or fails. The reader will have to decide for him or herself whether the highly-contextual accounts of international incidents in my book provide useful explanations of decisions and outcomes.

Cheng Book Roundtable: When International Law Works – but for whom?

by Ralph Wilde

[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?

Cheng Book Roundtable: How to Assess the Value of International Legal Theory

by Julian Ku

I agree with Professor Cheng that legal theory does not have to be predictive to be successful.  But I wonder if he sets the bar a bit too low. In his previous post, he writes:

Providing a framework of analysis to address international problems, to guide but not control, is perhaps the best that can be done. It may also be the most that ought to be done.

But two of the leading alternative theories that Professor Cheng discusses in his book claim to do more than simply guide. One, positivism, claims to control and the other, rationalism, claims to predict.

Cheng Book Roundtable: Should International Legal Theory Predict? (A Response to Professor Ku)

by Tai-Heng Cheng

Professor Ku’s review of When International Law Works is most insightful. I thank him for it.

His “short bloggish description” of its thesis is as clear a summary of my book as I’ve been able to muster in two sentences. I confess I will probably appropriate it when I present the book at Temple Law School later this week.

Professor Ku raises a good question about how predictive my “theory” is. Certainly theory in the hard sciences is often predictive. Many such theories are expressed as falsifiable hypotheses.

In contrast, law is a social phenomenon, and human beings that are involved in legal problems are autonomous decisionmakers. It may be possible to anticipate what others may do. But it is probably impossible to fully predict outcomes in international problems.

My goal is not thus to predict. My goals are to explain how the international legal system works and to help decisionmakers make decisions in international problems, in order to justify international law’s claim to regulate international matters. For scholars of jurisprudence, my “theory” seeks to guide decisionmakers in deciding, just as Dworkin’s theory in Law’s Empire seeks to guide judges in judging.

Professor Ku wonders, quite reasonably, whether my theory would have made any difference to the Bush administration policies on waterboarding. Without being a fly on the Oval Office walls, I cannot know how much room the administration lawyers had to influence policy, or what policy choices were realistically available to the President based on the information he received from his technical and political advisors.

But my theory would have helped the different decisionmakers assess more comprehensively the competing goals, including respect for the rule of law, national security, and human dignity, to come to a decision.

One might bemoan the lack of greater coercive force in international law. In many (but not all) international problems, such an aspiration would be unrealistic, given the absence of centralized global authority. Arguably, in many (but not all) international problems, it would also be normatively undesirable to remove the discretion of decisionmakers, given the lack of global consensus on values.

Providing a framework of analysis to address international problems, to guide but not control, is perhaps the best that can be done. It may also be the most that ought to be done.

I’ll end with a personal observation. Professor Ku has suggested that I am a “moderate proponent” of the New Haven School. I’m not sure I know what an immoderate proponent of policy-oriented jurisprudence looks like, if one exists.

What I do know is that the panorama when one stands on the shoulders of giants of the New Haven School is breathtaking. I hope through my book to share with the view with you.