Approaches to International Law


Approaches to International Law

Discourse of legal processes within the global setting has produced varied theories, principles and practices expressed as distinct approaches to International Law. Several of these proposed approaches are domestic practices reconstructed for global application while others are newly evolving and expressly international postures.

New Haven Approach

The New Haven School is a policy-oriented perspective on international law pioneered by Myres S. McDougal and Harold D. Lasswell. [Reisman, Michael. “The View from the New Haven School of International Law” International Law in Contemporary Perspective (Foundation Press, New York, NY 1992)] Its intellectual antecedents lie in sociological jurisprudence of Roscoe Pound and the reformist ambitions of the American Legal Realists.From the standpoint of the New Haven approach, jurisprudence is a theory about making social choices. The primary jurisprudential and intellectual tasks are the prescription and application of policy in ways that maintain community order and simultaneously achieve the best possible approximation of the community’s social goals. [Reisman (2004), 2] These normative social goals or values of the New Haven approach include the production of wealth, of enlightenment, of skill, of health and well-being, of affection, of respect and rectitude. [Reisman (2004), 5]

New New Haven Approach

In 2007, the Yale Journal of International Law convened a conference to discuss whether there is now a purported New New Haven Approach. [Dickinson, Laura. “COMMENTARY:Toward a 'New' New Haven School of International Law?" The Yale Journal of International Law, Inc. (Yale Journal of International Law 2007)] The New New Haven Approach draws heavily upon the older methodology of Transnational Legal Process (TLP) and seeks to encompass both the New Haven Approach and TLP. The key elements of the purported New New Haven approach are described as follows: the "scholarship often takes a normative stand;" it "often takes a flexible approach to the actors of international law;" and it "adopts a practice-oriented study of the norms and processes of international law in action on the ground." [Dickinson, Commentary(2007)]

International Relations/International Law

International Relations and International Law (IR/IL) is an interdisciplinary method that draws on four schools within the realm international legal theory known as realist, institutionalist, constructivist and liberal. IR/IL combines the principles of these theories with the examination of legal rules and institutions, taking into account the behavior of relevant actors of a given situation, as well as the interests of these actors, and what factors may determine their interests. IR/IL seeks to provide a full and comprehensive description of a legal institution or rule and then provide an explanation for the description that labels it as either a dependent or independent variable. Thus, IR/IL explains why and how a legal institution came to be, and is useful for designing and improving future institutions and laws. [Abbot, Kenneth W. "Symposium on Method in International Law: International Relations Theory, International Law and the Regime Governing Atrocities in Internal Conflicts." (1999): 361-378]

International Legal Process

The classic International Legal Process is the method of studying how international law is practically applied to, and functions within international policy, as well as the study of how international law can be improved. [O’Connell, Mary Ellen. “Symposium on Method in International Law”. The American Society of International Law American Journal of International Law, 1999), 334.] “It concentrates not so much on the exposition of rules and their content as on how international legal rules are actually used by the makers of foreign policy”. [O’Connell (1999), 334.] ILP was developed in response to the “realists from the discipline of international relations” [O’Connell (1999), 336.] , who realized with the beginning of the Cold War how little international law played a role in international affairs. ILP was made a legitimate theory in the 1968 casebook International Legal Process, by Chayes, Ehrlich and Lowenfeldan, in which the American legal process method was adapted to create an international legal process. [O’Connell (1999), 335.] ILP describes the way international legal processes work, and the formal and informal ways that foreign offices incorporate international law. [O’Connell (1999), 334.] ILP also measures the extent to which individuals are held accountable for abuses in international conflicts. [O’Connell (1999), 337.] While ILP recognizes that international law does not force decision makers' actions, it suggests that international law serves as a justification, constraint, and organizing device. [O’Connell (1999), 337.] Criticism of ILP's lack of normative qualities in its method resulted in the emergence of a new ILP. [O’Connell (1999), 338.]

New International Legal Process

The New International Legal Process (NLP) incorporates both law as aprocess and as the values of each society respectively. Unlike theAmerican Legal System, it considers normative values other thandemocracy, such as "…feminism, republicanism, law and economics,
liberalism as well as human rights, peace and protection to theenvironment." [O’Connell (1999), 77.] The NLP is unique in its flexibility in adapting to theevolution of values. This component of the method is important inorder to resolve the changing of legal standards over time. The NLPshows its true departure from the ILP by addressing what happens inthe situation of conflict, as well as what should be happening.

Critical Legal Studies

Critical Legal Studies (CLS) emerged as a legal theory in America during the 1970's. It exists to this day as a method of analyzing international law from a highly theoretical perspective. [Steinberg, Richard & Zasloff, Jonathan. "Power and International Law" 100 AM. J. Int’l L. 64, 64 - 87 (2006)] The method proposes that the nature of international law is limited because it is determined by language, which is biased and still stuck in the conventional structures of politics and power. [Shaw, Malcolm N. "International Law" (5th ed. 2003) p. 62] Critical Legal scholars argue that those structures of power can be found within the binaries that exist in legal language [Steinberg & Zasloff (2006)] (man vs. woman, majority vs. minority, etc). Recognizing the political aspect of international law, these scholars also argue that universality is impossible. [Shaw (2003)] Criticism of this method suggests that this radical practice is impossible to put into application. It was successful, however, in pushing forward other approaches to international law (feminist, cultural relativist, etc.) [Lillich, Richard B. "International Human Rights: Problems of Law, Policy, and Practice" (4th ed. 2006) p. 36] because of its deep analysis of language, and all the imbalance that it reveals.

Central Case Approach

The central case approach is a method of looking at human rights situations. This approach recognizes the existence of certain universal rights. [ Cheng, Tai-Heng. "The Central Case Approach to Human Rights." Pacific Rim Law & Policy 13:257 (2004), 260.] It begins analyzing a human rights issue by constructing a hypothetical ideal situation in which those rights are applied, a standard against which to compare an actual situation. The central case approach then investigates to what extent, and in what ways the actual situation deviates from the ideal (or the central case). [Cheng(2004), 260.] The central case approach allows for more complexity than the traditional binary method of analysis. [Cheng(2004), 258.] In binary terms, human rights are simply violated or they are upheld. [Cheng(2004), 257.] This does not allow for degrees of severity of a human rights violation, which creates a deceptively simplistic view of a situation.
John Finnis developed the concept of a central case as it applied to assessing legal systems; [Finnis, John. “Natural Law and Natural Rights.” 9-11 (H.L.A. Hart ed., 1986)(1996)] Tai-Heng Cheng was the first to apply it to human rights. If used by decision-makers, the central case approach could be effective in preventing human rights abuses. It takes into account a society’s political and social situations in addition to specific human rights abuses. [Cheng(2004), 260.] This enables it to detect trends of human rights abuses, and the reasons behind these trends. The depth of a central case analysis exposes the different degrees of human rights abuses that occur, allowing policy makers to focus on the most severe cases and patterns of abuse with more urgency. The central case approach provides an accurate and flexible picture of situations that are in a state of change. [Cheng(2004), 261.] Whereas a binary appraisal would conclude whether a human right had been violated at one point in time, the central case approach can detect shifting political and social conditions and patterns that give a more nuanced view of the state of human rights. [Cheng(2004), 261.]

Economics and Law

This approach to law applies theories or economics in order to identify the legal implications of maximizing behavior inside and outside of markets. Economics is the study of ration choice under limited conditions. [ Hawley, Frederick Barnard. “The Definition of Economics”.The American Economic Review, Vol. 3, No. 3. (September 1913), 606-609 [http://links.jstor.org/sici?sici=0002-8282%28191309%293%3A3%3C606%3ATDOE%3E2.0.CO%3B2-7] ] Rational choice is the assumption that individual actors seek to maximize their preferences. [ Hawley 1913, 606-609] Most of the economic theory employed here is neoclassical traditional economics. Economic techniques include price theory, which evaluates strategic interaction between actors. [ Forsythe, David. Human Rights in International Relations (Cambridge University Press 2000)] Transaction cost economics, which incorporates cost of identifying actors, negotiating, and costs of enforcing agreements into price theory. Game Theory, which can demonstrate how actors with maximizing behavior might fail to take action increase join gain. [“Game Theory." Encyclopædia Britannica. 2008. Encyclopædia Britannica Online. 13 Mar. 2008 [http://search.eb.com/eb/article-9109420] ] Public choice applies economic tools to problems outside of markets.These tools are used to describe and evaluate law. Using these tools laws are tested for economic efficiency. [ Ratner, Steven R.. International Law: The Trials of Global Norms (in The Frontiers of Knowledge). Foreign Policy, No. 110, Special Edition: Frontiers of Knowledge. (Spring, 1998), 65-80 [http://links.jstor.org/sici?sici=0015-7228%28199821%290%3A110%3C65%3AILTTOG%3E2.0.CO%3B2-H] ] Economic theories are also used to propose changes in the law. This approach urges the adoption of laws that maximize wealth.Potential application of this approach would begin with a text-based interpretation. A secondary concern is whether or not an actual "market" context is functioning well. Thirdly, ways to improve the imperfect market are proposed.This approach could be used to analyze general legal questions, because this approach provides highly specified rules and provides the rationale for using them.This approach relies on assumptions that perfect competition exists, and that individuals will behave in order to maximize their preferences. The empirical presence of these conditions is often difficult to determine.

Positivist Legal Theory

Positivist approach regards law as a unified system of rules that emanate from state will. This system of rules is an "objective" reality and needs to be distinguished from law "as it should be." Classic positivism demands rigorous tests for legal validity. Extralegal arguments, e.g., arguments that have no textual, systemic or historical basis, are deemed irrelevant to legal analysis; there is only hard law, no soft law. [Simma, Bruno and Paulus, Andreas L. "SYMPOSIUM ON METHOD IN INTERNATIONAL LAW: The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View" 93 A.J.I.L. 302 American Journal of International Law (April, 1999)] Criticisms of positivism in international law include its rigidity and focus on state consent, without allowing for interpretation.This consequently leads to another criticism, which is that the method does not allow for the morality of a State’s conduct to be judged as long as it follows international norms and treaties.

Feminist Legal Theory

Feminist legal theory critiques current legal vocabulary and practice by arguing it is patriarchal, presenting men as the norm and women as a deviation from the norm. Feminist theorists propose to change legal language to make it more inclusive of women, or to rethink law completely, so it is possible to promote broader social goals of justice and equality. Feminist methods seek to expose the biases from which international law is written and particularly the notion that women are more vulnerable than men and need special protection under the law. Feminist theorist Hilary Charlesworth criticizes the dialogue of women as victims in need of protection from both men and international law. Additionally, she argues that the irony of the dominant language is that while it aims to especially protect women, the emphasis is on the protection of her honor and not on the protection of her social, cultural and economic rights.

LGBT Legal Theory

Lesbian, Gay, Bisexual, and Transgender/Transsexual (LGBT) International Law Theory is a critical school of thought that continues to develop as the shortcomings of international law are realized, in regard to the integration of queer theory into international law theory. While human rights conventions have recently begun to generalize in regard to equality and its recipients, in the past, any discussions of sexual orientation and gender identity have gone largely untouched. The movement of LGBT International Law Theory centers on the inclusion and awareness of LGBT rights (and protection of persons), as well as the integration of queer theory within the realm of international law.As LGBT theory has become more prominent in scholarly works, international courts and international law organizations (particularly the European Union Council and the United Nations) have considered workplace discrimination on the basis of sexuality, issues stemming from the definition of family in regard to homosexual unions, the position of
transsexuals in the question of sexual orientation, the need for recognition of LGBT rights in regard to general health advocacy and the HIV/AIDS crisis, the inclusion of and LGBT advocacy group within the UN (with advisor status), and the ongoing active persecution of people engaging in homosexual acts, among other issues. [Sanders, Douglas. “Human Rights And Sexual Orientation in International Law.” 11 November, 2005. International Gay and Lesbian Law Association] According to scholar Nancy Levit, the challenges for gay legal theory are twofold: to move away from the frailties of both formal equality and antisubordination theories, and to develop ways of representing sexual minorities that will make them more acceptable, if not valuable, in a broader cultural context, that is the critical body of LGBT International Law Theory. [Levit, Nancy. "A Different Kind of Sameness: Beyond Formal Equality and Antisubordination Principles in Gay Legal Theory and Constitutional Doctrine" (Ohio State Law Journal, Vol. 61, 2000) p. 867. ]

Roman Law in International Law

The idea of international law in Roman times is a complicated one. For, not only does the Roman Republic and following empire itself dominate a long period of time in history, but also the very debate over whether or not the term “international law” is an applicable term is not yet decided. [Lesaffer, Randall. “Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription” Volume 16, Number 1 (European Journal of International Law 2005)] Many scholars and authors define international law as “the law governing relations between sovereign, territorial states.” [Lesaffer (2005), 25-58] Any attempt to find a similar parallel in Roman law would find a logical starting point in the ius gentium (the laws of nations). [Mousourakis, George “The Historical and Institutional Context of Roman Law” (Ashgate Publishing company, 2003), 22] The ius gentium began as a Roman recognition of like legal practices and institutions (such as slavery) that was found at that time in most states. [Mousourakis (2003), 23] This brand of law was in fact private law in itself and mainly dictated the way in which the Roman state was to deal with individual foreigners, not entire states. [Mousourakis (2003), 23] However, when citizenship was granted to all free men in the empire in 212 A.D. ius gentium ceased to cling to its original definition and instead was applied to states as a whole. [Lesaffer (2005), 25-58] Some semblance of modern international law can therefore be found in this shift. The actual extent of these origins and their relevance to modern law is a topic that has not yet been approached in any depth.

Third World Approach

Third World Approaches to International Law (TWAIL) is a critical approach to international law that is not a "method" in the strict sense of questioning "what the law is". Rather, it is an approach to law that is unified by a particular set of concerns and analytical tools with which to explore them. It is an approach that draws primarily from the history of the encounter between international law and colonized peoples. TWAIL shares many concepts with post-colonial studies, feminist theory, Critical legal studies, Marxist theory and critical race theory. TWAIL scholarship prioritizes in its study the power dynamic between the First World and Third World and the role of international law in legitimizing the subjugation and oppression of Third World peoples. TWAIL scholars try to avoid presenting the "Third World" as a unified, coherent place but rather use the term to indicate peoples who have the shared experience of underdevelopment and marginalization.Contemporary TWAIL scholarship has it origins in works of jurists such as Georges Abi-Saab, F. Garcia-Amador R.P. Anand, Mohammed Bedjaoui, and Taslim O. Elias. Over the years, several Western scholars have been sympathetic to the Third World's position and made important contributions to this body of scholarship, and these include, scholars such as C.H. Alexandrowicz, Richard Falk, Nico Schrijver and PJ.I.M. de Waart. David Kennedy and Martti Koskenniemi have also contributed support in their own work.TWAIL as a loose network of scholars has had three conferences thus far. TWAIL I was held at Harvard Law School in March, 1997. TWAIL II was held in October 2001 at Osgoode Hall Law School. TWAIL III was held at Albany Law School in April 2007.

Bibliography

* Third World Quarterly Vol. 27, No.5 (2006)
* Antony Anghie, Bhupinder Chimni, Karin Mickelson and Obiora Chinedu Okafor (eds.), The Third World and International Order: Law, Politics and Globalization (Leiden: Brill Academic Publishers, Martinus Nijhoff, 2003)
* Mutua, wa Makau, “What is TWAIL?” Vol.31 American Society of International Law Proceedings (2000)
* Rajagopal, Balakrishnan, International Law From Below; Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003)
* Anghie, Anthony, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press 2005)

External links

* TWAIL III [http://www.albanylaw.edu/twail/]
* TWAIL Bibiliography (work in progress) [http://www.law.utah.edu/academic/research-through-justice/research-portal.asp]

Footnotes


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