This chapter introduces some of the study’s main concepts. It situates this study within a growing body of comparative international law scholarship and describes how international law should be understood as a transnational legal field,... more
This chapter introduces some of the study’s main concepts. It situates this study within a growing body of comparative international law scholarship and describes how international law should be understood as a transnational legal field, drawing on concepts from sociology. It explains why the study focuses on academics and textbooks, and examines “elite” law schools from the five permanent members of the Security Council, along with what these approaches highlight and obscure. It introduces concepts that are important for the study, including: nationalizing, denationalizing, and westernizing influences; notions of the core, semiperiphery, and periphery; and English as international law’s lingua franca. Finally, it highlights some methodological points and limits, including that the study does not attempt to distinguish between factors that reflect and reinforce different understandings of and approaches to international law and that it largely captures a snapshot in time rather than...
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This chapter examines three implications of these patterns of difference and dominance for the wider field of international law. First, although most legal academies and law schools remain relatively nationalized, there are outliers that... more
This chapter examines three implications of these patterns of difference and dominance for the wider field of international law. First, although most legal academies and law schools remain relatively nationalized, there are outliers that are significantly more internationalized than their counterparts. Different academies also evidence different strengths and areas that are ripe for future development. Second, the existence of distinct national or regional communities of international lawyers may result in substantial disconnects developing within the field, such as in debates about Crimea and the South China Sea. Third, some of the patterns of dominance that emerge in the academies and textbooks are replicated elsewhere in the field, including privileging sources and actors from Western states in general, and from the United States, the United Kingdom, and France in particular. Choice of language and the emergence of English as the lingua franca play particularly important roles in this privileging process.
International law textbooks, casebooks and manuals are important to study as they help to reveal how international law is understood, found, and interpreted by the current generation of international lawyers in a particular state and how... more
International law textbooks, casebooks and manuals are important to study as they help to reveal how international law is understood, found, and interpreted by the current generation of international lawyers in a particular state and how this conventional wisdom is passed on to the next generation. These books play a significant socializing role in shaping international lawyers’ knowledge of which issues are core, which sources are important, which debates are controversial, which norms are settled, and who and what the leading authorities are. This chapter compares the books that are used to teach international law in the five permanent members of the Security Council. Using case studies (e.g., humanitarian intervention and state sovereignty) and visual representations (e.g., citation patterns of case law), this chapter sheds light on how nationalized, denationalized, and westernized the books from these states are in terms of their substance, sources, and approaches.
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The classic starting point for identifying the sources of international law is Article 38 of the Statute of the International Court of Justice. Article 38 famously refers to three sources: treaties, customary international law, and... more
The classic starting point for identifying the sources of international law is Article 38 of the Statute of the International Court of Justice. Article 38 famously refers to three sources: treaties, customary international law, and general principles of law; as well as two subsidiary means for determining rules of law, namely judicial decisions and the teachings of publicists. However, Article 38 does not adequately reflect how the doctrine of sources operates in practice because it omits important sources of international law while misrepresenting the nature and weight of others. To appreciate how the doctrine of sources operates in practice, international lawyers need to understand how international law is created through a dialogue among states, state-empowered entities and non-state actors. States are important actors in this process, but they are not the only actors. It is only by understanding this process of dialogue that one can develop a full understanding of the theory – a...
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This chapter identifies and explores some of the nationalizing, denationalizing, and westernizing influences that reflect and reinforce the divisible college of international lawyers. Part I focuses on transnational flows of student and... more
This chapter identifies and explores some of the nationalizing, denationalizing, and westernizing influences that reflect and reinforce the divisible college of international lawyers. Part I focuses on transnational flows of student and materials, which provide a template for understanding some of the asymmetries that characterize the field. Students are more likely to move from peripheral and semiperipheral states toward core states, and from non-Western states to Western ones, than the reverse. Legal concepts and materials, like textbooks and case law, are more likely to move from core states to peripheral and semiperipheral ones, and from Western states to non-Western ones, than vice versa. Parts II, III, and IV then look at how the educational profiles of international law academics in different states, their publication placements, and their connections to practice reflect and reinforce certain forms of difference and dominance that help to structure international law as a tran...
How do actors undertake institutional design in complex systems? Scholars recognize that many international regimes are becoming increasingly complex. Yet relatively little is known about how actors design or redesign institutions amid... more
How do actors undertake institutional design in complex systems? Scholars recognize that many international regimes are becoming increasingly complex. Yet relatively little is known about how actors design or redesign institutions amid this complexity. As participant-observers in the UN negotiations on investment treaty reform, we have watched state officials and other participants grapple with this question for several years. To help explain what we have observed, we conceptualize these participants as complex designers—actors who seek to design and redesign institutions within complex adaptive systems. We then formulate three emergent design principles that seem to guide their approach as they aim to create: flexible structures, balanced content, and adaptive management processes. In a dynamic era marked by unpredictability, division, and complex transnational challenges, we believe these concepts may prove to be increasingly relevant in global governance.
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Gender and Refugee Law Anthea Roberts* Women's rights are at the forefront of developments in international refugee law. A refugee is a person who is unable or unwilling to avail himself or herself of the protection... more
Gender and Refugee Law Anthea Roberts* Women's rights are at the forefront of developments in international refugee law. A refugee is a person who is unable or unwilling to avail himself or herself of the protection of his or her country, owing to a well-founded fear of ...
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By definition, international law, once agreed upon and consented to, applies to all parties equally. It is perhaps the one area of law where cross-country comparison seems inappropriate, because all parties are governed by the same rules.... more
By definition, international law, once agreed upon and consented to, applies to all parties equally. It is perhaps the one area of law where cross-country comparison seems inappropriate, because all parties are governed by the same rules. However, as this book explains, states sometimes adhere to similar, and other times adopt different, interpretations of the same international norms and standards. International legal rules are not a monolithic whole, but are the basis for ongoing contestation, in which states set forth competing interpretations. International norms are interpreted and redefined by national executives, legislatures, and judiciaries. These varying and evolving interpretations can, in turn, change and impact the international rules themselves. These similarities and differences make for an important, but thus far largely unexamined, object of comparison. This is the premise for this book, and for what the editors call “comparative international law.” This book achiev...
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On March 5, 2014, the United States Supreme Court, in BG Group PLC v. Republic of Argentina,1 ruled for the first time on the standard of review U.S. courts should apply when examining investment treaty awards to determine whether an... more
On March 5, 2014, the United States Supreme Court, in BG Group PLC v. Republic of Argentina,1 ruled for the first time on the standard of review U.S. courts should apply when examining investment treaty awards to determine whether an arbitral tribunal exceeded its powers. In a 7-2 split, with a concurrence, the majority adopted a highly deferential standard of review based on interpretive presumptions developed under U.S. domestic law for arbitration agreements found in ordinary contracts between private parties. The dissent, by contrast, opted for a de novo standard of review based on the recognition that states have delegated an important function of policing arbitral decisions on jurisdiction to national courts and that particular care is required when this function is exercised in investor-state disputes founded on interstate treaties. The dissent’s approach is preferable because it appreciates the public international law basis and public law nature of investment treaty arbitration, which differs in important ways from contractual arbitration between private parties.
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Is International Law International? takes the reader on a sweeping tour of the international legal academy to reveal some of the patterns of difference, dominance, and disruption that belie international law’s claim to universality. Both... more
Is International Law International? takes the reader on a sweeping tour of the international legal academy to reveal some of the patterns of difference, dominance, and disruption that belie international law’s claim to universality. Both revealing and challenging, confronting and engaging, this book is a must-read for any international lawyer, particularly in a world of shifting geopolitical power. Pulling back the curtain on the “divisible college of international lawyers,” the author shows how international lawyers in different states, regions, and geopolitical groupings are often subject to differences in their incoming influences and outgoing spheres of influence in ways that affect how they understand and approach international law, including with respect to contemporary controversies like Crimea and the South China Sea. Using case studies and visual representations, the author demonstrates how actors and materials from some states and groups have come to dominate certain trans...
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InImperfect Alternatives: Institutional Choice and the Reform of Investment Law, Sergio Puig and Gregory Shaffer introduce comparative institutional analysis to evaluate alternative processes for resolving investment disputes. The impetus... more
InImperfect Alternatives: Institutional Choice and the Reform of Investment Law, Sergio Puig and Gregory Shaffer introduce comparative institutional analysis to evaluate alternative processes for resolving investment disputes. The impetus for this article is clear: many states view investor-state arbitration as akin to a horse that has bolted from the barn. Wishing to close the stable door, a wide range of states are considering the merits of various reform proposals. Puig and Shaffer's comprehensive and balanced framework for assessing the tradeoffs involved in making different choices is thus a welcome and timely intervention in these (often highly polarized) debates.
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First, the withdrawal proposal is premised on an analogy between treaties and custom given the apparent anomaly that withdrawal is sometimes permitted from the former but never from the latter. Yet the emphasis in treaty law is on... more
First, the withdrawal proposal is premised on an analogy between treaties and custom given the apparent anomaly that withdrawal is sometimes permitted from the former but never from the latter. Yet the emphasis in treaty law is on optional commitments entered into ...
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Modern international law takes as a fundamental value the condemnation and redress of certain categories of heinous conduct, such as genocide, torture, and crimes against humanity. Recognizing the need to end impunity for those crimes,... more
Modern international law takes as a fundamental value the condemnation and redress of certain categories of heinous conduct, such as genocide, torture, and crimes against humanity. Recognizing the need to end impunity for those crimes, international law permits a state, by the principle of universal jurisdiction, to prosecute them even when they take place outside its territory and do not involve its nationals.In virtually all domestic legal systems, an individual who engages in wrongful conduct causing personal inj ury or death will be subject not only to criminal prosecution, but to a civil action by the injured party. Yet, though the principle of universal jurisdiction is well established in the criminal sphere, it is still regarded as novel in the civil context.Recent developments—most notably the decision of the United States Supreme Court in Sosa v. Alvarez-Machain—will cause greater examination of the function and scope of universal jurisdiction as authorization for national ...
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When the skin of an Australian platypus was first taken to England in the 1700s, scientists thought it was a fake. It looked like someone had sewn a duck’s bill onto a beaver’s body; one scientist even took a pair of scissors to the skin... more
When the skin of an Australian platypus was first taken to England in the 1700s, scientists thought it was a fake. It looked like someone had sewn a duck’s bill onto a beaver’s body; one scientist even took a pair of scissors to the skin looking for stitches. The animal had fur and was warm-blooded like a mammal, yet laid eggs and had webbed feet like a bird or a reptile. Scientists struggled to categorize this unusual creature. Was it a bird, a mammal, or a reptile? Or was it some strange hybrid of all three?
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The demise of custom as a source of international law has been widely forecasted. This is because both the nature and the relative importance of custom’s constituent elements are contentious. At the same time, custom has become an... more
The demise of custom as a source of international law has been widely forecasted. This is because both the nature and the relative importance of custom’s constituent elements are contentious. At the same time, custom has become an increasingly significant source of law in important areas such as human rights obligations. Codification conventions, academic commentary, and the case law of the International Court of Justice (the Court) have also contributed to a contemporary resurrection of custom. These developments have resulted in two apparently opposing approaches, which I term “traditional custom” and “modern custom.” The renaissance of custom requires the articulation of a coherent theory that can accommodate its classic foundations and contemporary developments. This article seeks to provide an enriched theoretical account of custom that incorporates both the traditional and the modern approaches rather than advocating one approach over the other.
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Legality vs. legitimacy: can uses of force be illegal but justified? Roberts, Anthea (2008) Legality vs. legitimacy: can uses of force be illegal but justified? In: Alston, Philip and MacDonald, Euan, (eds.) Human rights, intervention,... more
Legality vs. legitimacy: can uses of force be illegal but justified? Roberts, Anthea (2008) Legality vs. legitimacy: can uses of force be illegal but justified? In: Alston, Philip and MacDonald, Euan, (eds.) Human rights, intervention, and the use of force. ...