Book Review: Is International Law International?

Is International Law International? by Anthea Roberts, Oxford University Press, 2017.

Reviewed by Beatrice Walton

It was a relatively straightforward Alien Tort Statute (ATS) case before the U.S. Supreme Court in 2003 that first led Anthea Roberts to the core question of her recent book, Is International Law International?[1] As she explains in the book’s preface, as a lawyer trained in Australia and in the United Kingdom who had come to the United States to work in a major New York law firm, there were many aspects of the U.S. legal profession and U.S. legal academy’s approach to international law that struck her as puzzling. When she first looked upon Sosa v. Alvarez-Machain—a case that has since become a key part of U.S. foreign relations law jurisprudence on civil liability for violations of “the law of nations,” and one studied widely by students in the United States—she later recalled thinking, “this isn’t international law” (p. xvii).

What is international law? At a time when so many commentators are concerned about the durability of the “international order,” or what some call the “liberal international order,” Is International Law International? serves as a welcome study of what international law means in some of the world’s major powers, particularly the United States, China, Russia, the United Kingdom, Australia, and France. Its goal is to understand whether these States and the communities within them understand international law in the same way. To the extent that disagreements about the content of international law inevitably transgress boundaries, the book asks whether these debates are in parallel, albeit in different languages, or whether communities around the world differ in terms of the “assumptions, arguments, conclusions, and world views” they bring to international law (p. 3). In the fields of international dispute settlement and diplomatic negotiation, the demand for such study is significant: if world leaders and lawyers, driven in part by the views and demands of domestic polities, are to have any hope of forging agreement at the negotiating table on the world’s most contentious issues, it would seem necessary that they speak mostly—if not entirely—the same legal language.

A short survey of contemporary politics reveals the need for such “comparative international law” research, and the potentially growing geographical fault lines in international law thinking. Take for example Russian President Vladimir Putin. Though he has used the term “international law” several thousand times in public speeches since assuming office,[2] his affinity for the term seems to have only grown with time. On Syria, President Putin went so far as to take out an Op-Ed in the New York Times in 2013, explaining that the United States would be violating international law by intervening to remove Syria’s chemical weapons stockpile. Even amidst grave crises, he contended, “The law is still the law, and we must follow it whether we like it or not.”[3] And in the media surrounding Russia’s military intervention in Ukraine and subsequent annexation of Crimea in 2014, President Putin and his administration have made elaborate attempts to justify Russia’s actions, referencing essentially every conceivable international legal argument: Crimea’s right to remedial self-determination, the legality of sub-State secession, Ukraine’s alleged status as a “failed State,” self-defense, Responsibility to Protect, and even an alleged invitation to intervene by the President of Ukraine.

In a critical article in Russkaya Gazeta in March 2015, Valery Zorkin, Chairman of Russia’s Constitutional Court, seemed to go further, proclaiming that Russia is actually bent on taking back notions of international law that Western international legal observers had been applying in hypocritical fashion around the world. As he explained, “Russia with regard to Crimea merely hurriedly rectified the new Kiev regime’s very gross violations of the key rights and freedoms of its own citizens—which [others], donning the latest mask of ‘champions of legality’ and in full agreement with that interested [Western] section of the world community, prefer not to notice.”[4]

China presents another example of a major power invoking the language of international law in response to recent controversies, developing what some see as its own doctrine of international law along the way. From territorial disputes in the South China Sea to China’s rejection of the jurisdiction of the International Tribunal for the Law of the Sea over these disputes, to disagreement between the United States and China over rights of passage for foreign militaries in coastal waters, Chinese diplomats and lawyers have invoked the concepts of “sovereignty” and “sovereign equality” with unabashed abandon. In doing so, they have sought to recapture notions of “sovereignty” percolating in international law in favor of an understanding more deeply rooted in Chinese history, as well as in contemporary development.

At the same time, Is International Law International? is careful not to become a study of mere politics, or of how great leaders have manipulated the language of international law for their own purposes. The book instead operationalizes its queries at an ostensibly more apolitical or sub-political level: the level of international legal academia—or what Roberts calls the “invisible college” of international lawyers working around the world. These lawyers and legal academics enjoy a privileged status in international law because their teachings serve as a subsidiary means of interpreting international law, as well as because they often advise governments and serve as counsel, arbitrators, judges, and experts in international legal disputes (p. 29).

A focus on international legal academia serves as a useful starting point for understanding global rifts in viewpoints about international law for another reason. Unlike domestic, or “municipal,” law, international law has long been touted as universalist in its core tenets, as well as in its aspirations; in The Hague, Brussels, Geneva, and other settings where international law is traditionally “done,” the cosmopolitan character of this “invisible college” has remained unquestioned. The book therefore presupposes that if students are no longer—or perhaps never were—trained in the same international law and international legal understandings, such cosmopolitan and universalist premises of international law might prove hollow over time; international law might seem less international, and viewpoints about international law more domestically contingent and regionally tethered, than commonly acknowledged.

To assess the potential for divisions in the contemporary international legal academy, the book adopts methodological approaches that are concertedly very technical. To the unsuspecting reader, the first substantive chapter, Chapter 3, disappoints for this reason. Overall, it has less the feel of a global reading of international legal content as bargained for at the outset, and more of an intricate examination of the international legal academy’s sock drawer—or perhaps an intricate cataloguing of the academic job market. For example, Chapter 3 begins by comparing the educational backgrounds of international law academics found at prominent law schools around the globe as well as by tracing their backgrounds to either government or private practice. It then links the publication placements of national academics to law journals around the world. With similar impression, Chapter 4 compares the major international law textbooks and casebooks found around the world, counting the references and scholarly citations used in these books, and logging whether these citations are to domestic or international sources. Out of these methods, Russia and France are said to be home to the most parochial international legal scholars in the world, as they have the fewest degrees in law from outside of their borders, likely due to language barriers. The United States and China fall somewhere in the middle, while the United Kingdom and Australia fair the best (pp. 74-83).

There may, though, be considerable methodological and analytical shortcomings in this exposition. For instance, a few additional suggestions seem incomplete, if not misleading: the suggestion that the U.S. has no foreign-trained clerks (p. 86), and that Yale and Harvard each only possesses two foreign-trained constitutional scholars (p. 86). Other data appears somewhat irrelevant to what seem to be Roberts’ driving, even if often implied, conclusions overall. As one example, how can the finding that France has participated in the second-greatest number of representations before the International Court of Justice be squared with two other factors that Roberts suggests matter for determining the parochial character of a legal academy: France’s relatively scant foreign journal placements and its incredibly few foreign-trained academics? If points like these cannot be reconciled, this may indicate issues in the probative value of the book’s metrics for assessing the “international-ness” of domestic legal systems.

On textbooks, the suggestion that U.S. course books would do well to make stronger engagement with international legal sources is, nevertheless, spot-on. However, Roberts’ larger analysis on this topic also seems to present some challenges. For instance, while U.S. textbooks are shown to cite the most domestic cases, textbooks in Russia are shown to engage with the second-most international cases (p. 147). This finding seems to be in some tension with Roberts’s suggestion that Russia is an echo-chamber of a legal system disconnected from international perspectives on international law, in part because of linguistic divides.

A few qualitative comparisons of substantive topics in international law provide payoff for the project. Clear divisions emerge in the treatment of the use of force and intervention by the United States since September 11, 2001, particularly with respect to the Iraq War. French books, for example, have clearly condemned the Iraq War as unlawful; in contrast, at least one leading international law textbook in the United States notes disagreement on the topic but fails to declare the event unlawful (pp. 199-205). Similarly, Chinese textbooks do not mention Responsibility to Protect or the United States’ military intervention in Kosovo, in contrast to most U.S. textbooks, while Russian textbooks outright declare the intervention in Kosovo a major violation (pp. 196-97).

Yet throughout the book, Roberts actually focuses rather little on these substantive issues. Instead, she seems more interested in a slightly different (albeit implicit) question—one more related to Sosa v. Alvarez-Machain than to how it is that China and Russia and other States around the world have come disagree on concepts like “sovereignty” and the legality of interventions: What is the appropriate relationship between domestic law—and in particular “foreign relations law” (where a State has a body of law carrying this name)—and international law?

Perhaps surprisingly, this question is the book’s most controversial, but also its most novel. Though Roberts hardly purports to address it explicitly, her decision to study scholarly citations to domestic foreign relations law cases and data on lawyers with backgrounds in domestic government and appellate practice nevertheless implores that we ask it. After all, how can the reader assess the “international-ness” of “international law” without an explanation of the relevance of foreign relations law canons within international law proper—let alone without some background on what references to domestic cases mean about a State’s approach to international law?

Robert’s suggestion that international lawyers are members and participants in what is actually a “divisible,” not an “invisible,” college may serve as a starting point for understanding what some aspects of such an appropriate relationship between international law and domestic law might look like (p. 2). That is, in contrast to a purely cosmopolitan elite, Roberts recognizes that international lawyers wear two hats: one pertaining to their skills in international law, and the other to their training and experience in domestic law.

The biggest implication of this observation might then be just a simple one: the need to keep separate which statements about international law are made while wearing each hat. For example, many international law textbooks in the United States would do well to re-label certain chapters as “foreign relations” law, as opposed to international law, to avoid any confusion as to the relevance of cases like Sosa, Kiobel, Medellín, and other cases involving international law before U.S. courts. Along similar lines, a wise suggestion might also be that U.S. courts, which have long made judgments referencing an unclear mix of both domestic and international law, should be more explicit about what findings and arguments they are making under which body of law. In the extensive line of cases addressing issues related to the president’s detention authority under the Authorization for Use of Military Force (AUMF) as relevant to the use of military commissions, for example, U.S. courts could afford to be clearer as to whether invocations of, say, the “law of war,” are meant to refer to the federal common law of war, or to international law. And in ATS cases, the courts would do well to determine whether the requisite elements and related standards to be applied when evaluating torts in violation of the law of nations are mandated or supplied by international law, as opposed to simply by domestic law. To date, it remains unclear whether these cases call on the courts to supply federal standards for legal constructions like aiding and abetting liability or mens rea, or whether these standards are mandated as part of international law in the first place.

However, making these efforts, we should remember, would hardly reduce the deeply ingrained importance of “foreign relations law,” in the United States—for better or for worse—despite what seems to be Roberts’ interest otherwise and her deep skepticism towards this body of law overall (pp. xviii-xvix). Indeed, even if legal academics and practitioners were to take a more active effort in keeping these bodies of law separate, there would still seem to be structural considerations within the U.S. federal courts system predisposing U.S. law to avoid answering questions of international law on the merits, in favor of answering domestic legal questions—foreign relations or otherwise. These forces deserve greater study.

In this vein, one might wonder whether—upon more careful comparative study outside the scope of Roberts’ book—the United States would actually prove to be that much of an outlier when it comes to having a domestic case law pertaining to international law issues, or simply is in some senses more explicit about the domestic legal structures that enable it to consider and implement international law. In other words, for every Al-Bahlul case there is radically stating that the United States can adopt divergent domestic legal constructs of otherwise very international concepts—even terms such as “war crimes”—in the federal courts,[5] there may well be an abundance of more hidden, and likely less-extreme, foreign analogues. For example, domestic European courts have recently convicted individuals of “war crimes” defined in reference to international law, which may not be universally agreed upon as international war crimes.[6]

Finally, perhaps the most important question to ask in the wake of Is International Law International? is what a divergence in understandings of international law means for international law overall. W. Michael Reisman, for example, would hardly be colored surprised by the findings of this book. As he explained several decades ago, perhaps one of the most important functions of the international lawyer has always been determining what, amongst a host of documents that might look like international law (lex simulata), international law is.[7] Guiding the lawyer as she parses through government statements, academic articles, briefs, notes, and other potential indicia of law is a series of key questions for determining “when is law made and how”: “(1) Who? (2) Says What? (3) In Which Channel? (4) To Whom? (5) With What Effect?”[8] Applying Reisman’s perspective, one implication may be that when U.S. lawyers speak to federal courts or domestic audiences about international law, these statements should carry relatively less weight for international law proper. By contrast, perhaps statements made by the United States before international tribunals would be cause for greater effect. Oversimplifying these interactions, however, may deceptively obscure the enduring relevance of each body of references in each sphere of influence.

In the end, it seems that when attempting to understand whether “international law is international,” two summary and at times conflicting questions are worth keeping straight: whether what is “international” about international law is the fact that it is common across States, or whether what is “international” about international law is simply its degree of divorce from domestic law—including from constructs implementing it in any given legal system. Citing the latter as evidence for the former, as in Roberts’ study, seems insufficient, however. The presence of Sosa in American textbooks may tell us something about what positions the U.S. State Department’s Office of the Legal Advisor, scholars, and other practitioners of international law might think about public international law on given subjects when compared with their foreign counterparts, but likely not much—even though Sosa is, for better or (often) for worse, a relevant aspect of practicing international law in domestic U.S. courts overall.

[1] Anthea Roberts, Is International Law International? (2017).

[2] Kremlin.ru, http://en.kremlin.ru/events/president/transcripts.

[3] Vladimir V. Putin, A Plea for Caution From Russia, N.Y. Times (Sept. 11, 2013), http://www.nytimes.com/2013/09/12/opinion/putin-plea-for-caution-from-russia-on-syria.html.

[4] “Право – и только право – О вопиющих правонарушениях, которые упорно не замечают” (Mar. 23, 2015), https://rg.ru/2015/03/23/zorkin-site.html.

[5] Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014).

[6] See O. Hathaway, P. Strauch, B. Walton, & Z. Weinberg, Defining War Crimes: Towards a Minimum Standard (2018) (manuscript on file with author).

[7] W. Michael Reisman, “International Lawmaking: A Process of Communication,” Lasswell Memorial Lecture, American Society of International Law, 75 Am. Soc’y Int’l L. Proc. 101, 102 (1981).

[8] Id. at 105-06.

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