Call for Papers: Method, methodology and critique in international law

The Asser Institute has issued a call for papers for a workshop on "Method, methodology and critique in international law." The call is here. The deadline is July 31, 2021.

Deplano & Tsagourias: Research Methods in International Law: A Handbook

Rossana Deplano (Univ. of Leicester - Law) & Nicholas Tsagourias (Univ. of Sheffield - Law) have published Research Methods in International Law: A Handbook (Edward Elgar Publishing 2021). The table of contents is here. Here's the abstract:

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This timely Handbook contains a wide-ranging overview of the diverse research methods used within international law. Providing an insightful examination of how international legal knowledge is analysed and adopted, this Handbook offers the reader a deeper understanding on the role and place of research methods in international legal theory, reasoning and practice.

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Split into five parts, the chapters cover key topics across doctrinal, empirical, socio-legal, interdisciplinary research methods and methodology. The contributors also apply their knowledge and insight to explore the relationship between different research methods and their role in international legal theory, reasoning and practice. Covering a range of diverse subjects yet written

Workshop Series: Method, methodology and critique in international law

The T.M.C. Asser Instituut has announced a year-long workshop series, beginning on December 16, 2020, on the topic "Method, methodology and critique in international law." The program is here.

Johns: Disciplinary Privilege and the Promise of Decampment: A Response to James Thuo Gathii's 'The Promise of International Law: A Third World View'

Fleur Johns (Univ. of New South Wales - Law) has posted Disciplinary Privilege and the Promise of Decampment: A Response to James Thuo Gathii's 'The Promise of International Law: A Third World View' (ASIL Annual Meeting Proceedings, forthcoming). Here's the abstract:

These remarks were delivered at the 114th Annual Meeting of the American Society of International Law, in which the author served as Annual Grotius Lecture Discussant, responding to James Thuo Gathii’s Grotius Lecture: ‘The Promise of International Law: A Third World View’. They address what Third World approaches to international law (TWAIL), and the structural racism of the discipline of international law that TWAIL scholarship makes apparent, demand of scholars proceeding from other epistemic locations.

Tzevelekos & Berkes: Sociological Objectivism: Still Relevant?

Vassilis P Tzevelekos (Univ. of Liverpool - Law) & Antal Berkes (Brunel Univ. London - Law) have posted Sociological Objectivism: Still Relevant? (in Research Methods in International Law: A Handbook, R Deplano & N Tsagourias eds., forthcoming). Here's the abstract:

The sociological objectivism school of thought situates itself within legal positivism but squarely rejects the key principles and assumptions of the voluntarist conceptualization of international law. Sociological objectivism denies state sovereignty and considers law as stemming, not from sovereign will, but from social necessity. For objectivists, positive law cannot produce normative effects unless it is aligned with an ideal, namely objective law. This raises questions regarding the interrelationship between objective law and natural law. Although the reality of contemporary international law disproves the extreme and ‘full-bodied’ version of sociological objectivism, certain precepts of this theory remain fairly germane. The chapter situates sociological objectivism within the broader design of legal positivism, discusses the key tenets of objectivism and explores how, outside of a ‘philosophy’ of international law, this theory can be translated into (a set of) method(s).

Gathii: Writing Race and Identity in a Global Context: What CRT and TWAIL Can Learn From Each Other

James Thuo Gathii (Loyola Univ. Chicago - Law) has posted Writing Race and Identity in a Global Context: What CRT and TWAIL Can Learn From Each Other (UCLA Law Review, forthcoming). Here's the abstract:

This article argues that issues of race and identity have so far been underemphasized, understudied and undertheorized in mainstream international law. To address this major gap, this Article argues that there is an opportunity for learning, sharing, and collaboration between Critical Race Theorists (CRT) and scholars of Third World Approaches to International Law (TWAIL). Such a collaboration, this Article argues, would produce a very sharp lens of tracing issues of race and identity in the imperial, transnational and global histories of international law and their contemporary continuities. By adopting a framework of studying race and identity in a global context, this Article will tie together and connect the domestic and the international. It will connect transnational histories between locations inside and outside the United States that have undergirded and reinforced white supremacism, as well as anticolonial resistance, domestically and internationally. Taking such an approach overcomes the wide variety of segregated and insular conceptualizations and definitions of race and identity within CRT and TWAIL respectively. Building a TWAIL/CRT global/transnational race/histories project will create productive insights about ideologies of racial domination and racial injustices in a domestic, international and transnational context. By combining the insights of CRT and TWAIL, it becomes possible to theorize imperialism and racism beyond those currently embodied in each approach.

Dellavalle: International Law and Interdisciplinarity

Sergio Dellavalle (Univ. of Turin - Law) has posted International Law and Interdisciplinarity. Here's the abstract:

The article presents three main arguments in favour of an interdisciplinary opening of international law. The first emerges from the transition from traditional international law to transnational law, as a result of which specialized legal subsystems increasingly overcome the boundaries of nation states and, by making themselves independent of the pyramidal structure of the constitutional order, tend to overlap one another. Consequently, the transnational sphere is characterized by a significant intersection of competences, so that contemporary international law cannot be understood properly without a substantial expertise in fields that transcend its usual understanding. The second argument in favour of interdisciplinarity is related to the content of law in general and of international law in particular. Because a set of norms fulfils the task of stabilizing the normative expectations that are generated within a specific social subsystem, it inevitably incorporates the kind of rationality that characterizes the functioning of that same social subsystem. Thus, to understand how a legal subsystem works, it is necessary to take into account the fundamental constituents of that kind of rationality which makes up the rules of interaction within the social subsystem related to that particular set of norms. The third argument for interdisciplinarity derives, finally, from the overall rationale of law. In fact, beyond the functional rationality that the legal norms acquire insofar as they fulfil the task of stabilizing the normative expectations generated within specialized social subsystems, the law also enshrines a more inclusive understanding of a metasystemic rationality, namely a comprehensive idea of social order. Therefore, law is to be interpreted as the system of formal propositions that lay down the rules and principles that govern human interaction according to a specific view of how the “well-ordered society” should be defined. While law’s relation to the specialized subsystems is the expression of its functional rationale, its link to the idea of how the “well-ordered society” is understood manifests its more encompassing social rationality and, by reflecting what we can define as the paradigms of order, incorporates the knowledge developed within extra-legal discourses.

Alschner: The Computational Analysis of International Law

Wolfgang Alschner (Univ. of Ottawa - Law) has posted The Computational Analysis of International Law (in Research Methods in International Law: A Handbook, Rossana Deplano & Nicholas Tsagourias eds., forthcoming). Here's the abstract:

When traditional international law techniques reach their conceptual and methodological limits, we need to look for help in other disciplines. International law scholars have in the past drawn inspirations from economics, political science or sociology to enrich the study and our understanding of international law. Now the time has come to add a new discipline to this list: computer science. The computational analysis of international law renders legal analysis scalable and empowers international lawyers to study international law in unprecedented depth and breadth. In this contribution, I provide an overview of computational techniques for the doctrinal and legal-institutional study of international law highlighting this neglected, but increasingly important field of interdisciplinary study.

Natarajan, Reynolds, Bhatia, & Xavier: Third World Approaches to International Law: On Praxis and the Intellectual

Usha Natarajan (American Univ. in Cairo - Law), John Reynolds (National Univ. of Ireland, Maynooth - Law), Amar Bhatia (York Univ. - Law), & Sujith Xavier (Univ. of Windsor - LaW) have published Third World Approaches to International Law: On Praxis and the Intellectual (Routledge 2018). The table of contents is here. Here's the abstract:

This book addresses the themes of praxis and the role of international lawyers as intellectuals and political actors engaging with questions of justice for Third World peoples. The book brings together 12 contributions from a total of 15 scholars working in the TWAIL (Third World Approaches to International Law) network or tradition. It includes chapters from some of the pioneering Third World jurists who have led this field since the time of decolonization, as well as prominent emerging scholars in the field. Broadly, the TWAIL orientation understands praxis as the relationship between what we say as scholars and what we do – as the inextricability of theory from lived experience. Understood in this way, praxis is central to TWAIL, as TWAIL scholars strive to reconcile international law’s promise of justice with the proliferation of injustice in the world it purports to govern. Reconciliation occurs in the realm of praxis and TWAIL scholars engage in a variety of struggles, including those for greater self-awareness, disciplinary upheaval, and institutional resistance and transformation. The rich diversity of contributions in the book engage these themes and questions through the various prisms of international institutional engagement, world trade and investment law, critical comparative law, Palestine solidarity and decolonization, judicial education, revolutionary struggle against imperial sovereignty, Muslim Marxism, Third World intellectual traditions, Global South constitutionalism, and migration.

d'Aspremont: Methodology

Jean d'Aspremont (Univ. of Manchester - Law; Univ. of Amsterdam - Law) has posted Methodology (in Jean d'Aspremont, Epistemic Forces in International Law - Foundational Doctrines and Techniques of International Legal Argumentation, pp. 177-199, 2015). Here's the abstract:

This paper constitutes a chapter of the author's monograph entitled Epistemic Forces in International Law (Edward Elgar 2015). After formulating some general considerations on the relationship between theory and methodology, it builds on the idea that methodological choices are most conducive to the persuasiveness of legal arguments and explores the social constraints on methodological choices in international law (I). The paper then turns more specifically to international law and offers a handful of critical observations on methodological debates in contemporary international legal studies (II). In doing so, it revisits some of the methodological postures revered and venerated by international lawyers today: induction, the idea of system, the so-called turn to empiricism, interdisciplinarity and multidisciplinarity, the abiding (need for) methodological revolution, pluralism and methodological perspectivism. It ends with a few observations on deconstruction, structuralism and the critical attitude in international legal studies.

d'Aspremont: Epistemic Forces in International Law

Jean d’Aspremont (Univ. of Manchester - Law; Univ. of Amsterdam - Law) has published Epistemic Forces in International Law: Foundational Doctrines and Techniques of International Legal Argumentation (Edward Elgar Publishing 2015). Here's the abstract:

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Epistemic Forces in International Law presents a comprehensive examination of the methodological choices made by international lawyers and provides a discerning insight into the ways in which lawyers shape their arguments to secure validation within the international legal community.

International law is defined in this book as an argumentative practice, articulated around a set of foundational doctrines and deployed through rhetorical techniques. Taking an original approach, Jean d’Aspremont focuses on five key foundational doctrines of international legal theory and five key techniques deployed in international legal argumentation. He argues that mastering these foundational principles and argumentative procedures shapes the discourse of international lawyers as much as these discourses shape these foundational doctrines and techniques of legal argumentation. This book is a pertinent contribution to the methodology and theory of international law, illustrating the rationale of the choices made by lawyers in the doctrines of statehood, sources, law-making, international organisations and effectivity.

Workshop: International Law as Behavior

On Thursday, November 13, 2014, the University of Georgia School of Law and the International Legal Theory Interest Group of the American Society of International Law will convene a book workshop on “International Law as Behavior,” at ASIL Headquarters (Tillar House) in Washington, DC. Here's the idea:

Organized by Harlan Cohen (University of Georgia School of Law), the workshop will bring together scholars working at the cutting edge in a variety of different fields, including constructivist international relations theory, anthropology, behavioral law and economics, organizations theory, social psychology, and sociology to discuss how these approaches can best be applied to the study of international law, how these approaches can complement both each other and positivist and rationalist accounts, the opportunities and challenges of working across these fields, and the development of a common language and tools to study how international actors actually behave, how their rationality is bounded by psychology, how they operate as members of groups and recipients of culture, and how they write and follow organizational scripts. Participants include Elena Baylis (University of Pittsburgh School of Law), Tomer Broude (Hebrew University Faculty of Law), Adam Chilton (University of Chicago School of Law), Sungjoon Cho (IIT Chicago-Kent College of Law), Martha Finnemore (George Washington University School of Law Elliott School of International Affairs), Jean Galbraith (University of Pennsylvania Law School), Derek Jinks (University of Texas School of Law), Ron Levi (University of Toronto Global Affairs and Sociology), Tim Meyer (University of Georgia School of Law), Galit Sarfaty (University of British Columbia Faculty of Law), and Kathryn Sikkink (Harvard Kennedy School). A book based on presentations at the workshop will follow.

Shaffer & Ginsburg: The Empirical Turn in International Legal Scholarship

Gregory Shaffer (Univ. of Minnesota - Law) & Tom Ginsburg (Univ. of Chicago - Law) have posted The Empirical Turn in International Legal Scholarship (American Journal of International Law, forthcoming). Here's the abstract:

This article presents and assesses a new wave of empirical research on international law. Recent scholarship has moved away from theoretical debates over whether international law “matters,” and focuses instead on exploring the conditions under which international law is created and produces effects. As this empirical research program has matured, it has allowed for new, mid-level theorizing that we call “conditional international law theory.”

Cryer et al.: Research Methodologies in EU and International Law

Robert Cryer (Univ. of Birmingham - Law), Tamara Hervey (Univ. of Sheffield - Law), & Bal Sokhi-Bulley (Queen's Univ. Belfast - Law) have published Research Methodologies in EU and International Law (Hart Publishing 2011). Here's the abstract:

Law research students often begin their PhDs without having an awareness of methodology, or the opportunity to think about the practice of research and its theoretical implications. Law Schools are, however, increasingly alive to the need to provide training in research methods to their students. They are also alive to the need to develop the research capacities of their early career scholars, not least for the Research Excellence Framework exercise. This book offers a structured approach to doing so, focusing on issues of methodology - ie, the theoretical elements of research - within the context of EU and international law.

The book can be used alone, or could form the basis of a seminar-based course, or a departmental, or even regional, discussion group. At the core of the book are the materials produced for a series of workshops, funded by the Arts & Humanities Research Council's Collaborative Doctoral Training Fund, on Legal Research Methodologies in EU and international law. These materials consist of a document with readings on main and less mainstream methodological approaches (what we call modern and critical approaches, and the 'law and' approaches) to research in EU and international law, and a series of questions and exercises which encourage reflection on those readings, both in their own terms, and in terms of different research agendas. There are also supporting materials, giving guidance on practical matters, such as how to give a paper or be a discussant at an academic conference.

The basic aim of the book is to help scholars in EU and international law reflect on their research: where does it fit within the discipline, what kinds of research questions they think interesting, how do they pursue them, what theoretical perspective best supports their way of thinking their project, and so on. The book is aimed both at PhD students and early career scholars in EU and international law, and also at more established scholars who are interested in reflecting on the development of their discipline, as well as supervising research projects.

Singh: Is There Third World Approaches to International Law?

Prabhakar Singh (Jindal Global Law School) has posted Is There Third World Approaches to International Law? Here's the abstract:

Modern critical legal thinking is pivoted on the critique of universalism. The critique of international law’s universalism has been done through theoretical workouts. Consequently, the new international legal scholarship is able to accommodate novel movements and intellectuals. TWAIL is such a movement. It has focused on capturing the relation between international law and the production of disadvantage for the subalterns of diverse geographies. However, self-satisfaction of legal scholars aside, is social-science-type discourse seeding the various parts – economic, human rights and humanitarian law – of positive international law? After all, how many judgments of the International Court of Justice (ICJ), the World Trade Organisation (WTO) and the European Court of Justice (ECJ), among other international courts, have ever mentioned “thinkers”? Given that all these international institutions operate with a treaty based constitutional mandate, lawyers have begun to think international law in constitutional terms. I will use Chimni’s scholarship to introduce the idea of TWAIL and Žižek’s “suspension of the law” to evaluate TWAIL’s criticality.

Corten: Méthodologie du droit international public

Olivier Corten (l'Université Libre de Bruxelles - Law) has published Méthodologie du droit international public (Editions de l’Université libre de Bruxelles 2009). Here's the abstract:

Depuis plusieurs années, on assiste à un développement considérable du droit international : de plus en plus de domaines sont régis par ce droit, des règles de plus en plus nombreuses apparaissent, les jugements et les études scientifiques se multiplient. Dans ce contexte, il apparaît illusoire de prétendre connaître le détail de toutes les règles existantes, même dans un domaine particulier, qu’il s’agisse du droit des Nations unies, des droits de la personne, du droit de la mer, du droit international humanitaire, ou encore du droit économique international. C’est pourquoi il paraît particulièrement important de disposer d’une méthode qui permette d’acquérir, de maîtriser et d’utiliser de nouvelles connaissances. Pourtant, aucun ouvrage de langue française n’a, jusqu’ici, été publié en méthodologie du droit international.

Ce texte a pour ambition de combler cette lacune ; il a été conçu à partir du cours de « méthodologie de la recherche en droit international », dispensé à l’Université libre de Bruxelles depuis 1997. Après avoir mis l’accent sur la diversité des approches méthodologiques, en les mettant en lien avec les options théoriques qui les sous-tendent, l’ouvrage comprend un chapitre centré sur la construction scientifique d’un sujet, l’expérience montrant que les difficultés d’une étude sont souvent dues à une conceptualisation préalable insuffisante. Sont ensuite exposés des problèmes méthodologiques plus spécifiques relatifs aux sources du droit international - avec un accent particulier sur la coutume - ainsi qu’à l’interprétation et à l’application de ce droit. Un dernier chapitre, plus classique, reprend quelques conseils relatifs à la rédaction d’un travail écrit.

Ginsburg & Shaffer: Empirical Work in International Law

Tom Ginsburg (Univ. of Chicago - Law) & Gregory Shaffer (Univ. of Minnesota - Law) have posted Empirical Work in International Law. Here's the abstract:

Empirical work in international law is rapidly increasing in quantity and sophistication. This trend reflects the expansion in number and importance of international organizations and courts, as well as developments in legal scholarship and the social sciences. This Handbook Chapter surveys empirical work on international tribunals, treaties and many substantive areas of law. Some of these areas, such as trade, investment and human rights, are the subject of burgeoning empirical literatures. Others, particularly private international law, have received less attention to date, but good work is beginning to emerge, as is the case with criminal law and investment law. We see the field continuing to expand and diversify in years to come, as many outstanding questions beg for analysis.

Ratner: Bringing Ethical Inquiry into International Law

Steven R. Ratner (Univ. of Michigan, Ann Arbor - Law) has posted Bringing Ethical Inquiry into International Law (in Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, forthcoming). Here's the abstract:

International law and ethics share a common goal of helping us understand the norms and institutions needed to promote a just world order. Yet each of the two fields has approached this shared task with little regard for the insights of other, and interdisciplinary collaboration is now imperative. This essay shows the complementary nature of inquiries in political and moral philosophy, on the one hand, and international law, on the other, by examining the so-called New Haven School (or policy-oriented jurisprudence), an international law method that explicitly considers values as both inputs and outputs of the process of making law. It finds that the School’s sociological orientation does not adequately integrate ethical inquiries essential to prescribing law, in particular questions about the scope of duties that individuals and states owe those abroad. Using the current legal debate over the extraterritorial application of human rights as an example, the paper shows how approaches from moral and political philosophy can help provide a rigorous and principled basis for the prescription of law, as well as link seemingly unrelated questions of international law to each other.

Brunnée & Toope: An Interactional Theory of International Legal Obligation

Jutta Brunnée (Univ. of Toronto - Law) & Stephen J. Toope (Univ. of British Columbia) have posted An Interactional Theory of International Legal Obligation (in Legitimacy and Persuasion in International Law, forthcoming). Here's the abstract:

This chapter forms part of a forthcoming book in which we provide a theoretical framework for international law and then apply it in concrete settings, ranging from the law on the use of force to international environmental law. In this first chapter, we set out an interactional theory of international legal obligation. Our theory draws on Lon Fuller's theory of law combined with insights of constructivist international relations theory, in particular Emanuel Adler's work on communities of practice. The theory that we articulate is rooted in three central arguments. First, legal norms can only arise in the context of social norms based on shared understandings. Second, internal features of law, which we call criteria of legality, are crucial to law's ability to promote adherence, or to inspire "fidelity." Third, legal norms are built, maintained, and sometimes destroyed through a continuing practice of legality.

Petersen: Rational Choice or Deliberation? - Customary International Law between Coordination and Constitutionalization

Niels Petersen (Max Planck Institute for Research on Collective Goods) has posted Rational Choice or Deliberation? - Customary International Law between Coordination and Constitutionalization. Here's the abstract:

Rational choice approaches to customary international law have gained in prominence in recent years. Although becoming increasingly sophisticated, they are not able to explain all phenomena of customary international law. This contribution claims that there are two different types of unwritten law in the international order. On the one hand, we have the traditional customary norms, which are identified by observing patterns of state conduct and a related opinio iuris. These norms may very well be described by rational choice approaches, which primarily observe under which conditions we may find stable patterns of behavior. However, there is, on the other hand, a different category of norms that functions in a different manner. These norms concern either human rights or public goods and can be considered as the principles of the international legal order. Their function is not to stabilize already existing behavioral equilibria, but to shape international relations in a positive way. They are not past-oriented, but future-directed. Therefore, it is the thesis of this contribution that a deliberative approach is more suitable to explain the role of these principles in the international community.