Approaches

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A. Introduction

This chapter introduces some of the most important approaches to international law, while the next chapter introduces methods in working within international law as a field of study, research, and practical expertise. The distinction between 'approaches' on the one hand and 'methods' on the other hand mirrors the distinction between methodology and method.^[2] This introductory sub-chapter, first, introduces this distinction and thereby tries to illustrate what 'approaches' to international law are. Second, it reflects on the traditional approach to international law and on its relationship with positivism. Third, it briefly introduces commonalities among and pluralities within critical approaches to international law more broadly, and, fourth, offers short glimpses into the specific critical approaches on which the following sub-chapters will expand, namely feminist and queer theory approaches, Third World Approaches, and Marxist approaches to international law.

B. What is an Approach? Methodology and Method

The different approaches presented in this chapter represent different methodologies, i.e. different sets of ontological and epistemological premises, which shape any intellectual enterprise. Premises are the starting point of an argument. They are the statements that are taken for granted as the point of departure. Ontological premises, simply put, are premises on what there is in the world, i.e. on whether there is an objective truth and/or fixed reality 'out there' and on which elements in the world determine such truths and realities. Epistemological premises are premises on what we can know and on how we can acquire and establish knowledge. No intellectual enterprise can be carried out consistently, transparently and therefore professionally and rigorously without, at the outset, gaining clarity about the ontological and epistemological premises.

The terms 'method' and 'methodology' are often used interchangeably.^[3] However, a useful distinction between the two consists in understanding methodology as a set of ontological and epistemological premises and therefore the point of departure, as explained above, and method as the roadmap guiding the individual steps to be taken from this point of departure. 'Method', then refers to the concrete application of the conceptual apparatus of a specific approach.^[4]

C. Traditional International Law and Legal Positivism

Despite influential figures like Ian Brownlie having argued that theory is but fog that obscures the more interesting legal questions,^[5] no inquiry into international law is possible without theory. It is necessary to at least be aware of the set of premises from which one is starting. The standard way of engaging with international law in the traditional approach, which Brownlie epitomises, consists in laying out 'what the law is' on a particular question by deriving the relevant rules from the sources of international law (mainly treaties, custom, and general principles, Art. 38(1) ICJ Statute) and by interpreting and applying these rules in accordance with existing authoritative interpretations and applications. This approach can be labeled 'doctrinal', 'traditional'^[6], 'orthodox'^[7], or simply 'mainstream'^[8]. Making a claim to knowledge about 'what the law is', however, necessarily involves adopting a position on what 'law' is and on how we can know it. A position that claims to discard theory altogether will often just adopt an inconsistent theoretical position as the starting point of its argument.^[9] This is often the case with the traditional, doctrinal, or orthodox approach. Another label which is often attached to this approach is 'positivist'.^[10] Positivism, generally, is a label attached to the set of ontological and epistemological premises according to which there is a single, objective truth 'out there' and that it is possible for human beings to know this truth reliably. Legal positivism, as a philosophical position,^[11] adopts these premises only for the established, i.e. 'positive' law, not for moral and other considerations, which are considered to be separate from law. Consequently, at least in 'hard cases', i.e. when the law employs vague terms like 'proportionality' or when the law has to be applied to circumstances not clearly reflected in the law, law is not longer a matter of cognition but of (usually a court's) decision. Philosophical legal positivists therefore agree that, at least in these 'hard cases', there is no single right answer to legal questions. However, practitioners who claim to be only interested in positive law and doctrinal scholars whose commitment to legal positivism mainly consists in adopting the perspective of practitioners and providing guidance by systematising existing legal materials, often operate under the assumption that answers about 'what the law is' have a single correct answer and that this answer can be found.^[12] 'Positivism' in the sense of the traditional doctrinal approach is therefore often incompatible with philosophical legal positivism.

D. Critical International Law

Critical approaches to international law emerged from the Critical Legal Studies movement in the United States, which was heavily influenced, first, by postmodern philosophy and, second, by Legal Realism. From postmodern and (post)structuralist philosophy, Critical Legal Studies and critical approaches to international law derive the premises that there is no objective and single truth 'out there' and that knowledge creation is not about neutral and objective cognition of a pre-existing truth but rather about the 'conditions of possibility' for expressing certain claims and for having these claims recognised and count as knowledge. The main characteristic of critical approaches to international law, therefore, consists in the claim that international law is radically indeterminate,^[13] i.e. that any course of action can be defended or rejected in terms of international law,^[14] and that the question of which position prevails is not a question of sound legal argument or correct legal method but of politics.^[15]This critique of the distinction between law and politics is what critical approaches to international law share with Legal Realism.

Martti Koskenniemi, who, together with David Kennedy^[16], has been the main figure in articulating, defending, and popularising this position, argues in his famous work From Apology to Utopia that 'international law is singularly useless as a means for justifying or criticizing international behaviour'.^[17] The reason for international law's radical indeterminacy, in Koskenniemi's account, is its fundamentally and irresolvably contradictory nature, which causes international legal arguments to oscillate between the poles of concreteness and normativity, apology and utopia. Legal arguments have to be both concrete and normative to be able to sustain the distinction between international law and politics and to be able to assume that law is more objective than politics.^[18] Concreteness means that the law’s content has to be verified ‘not against some political principle but by reference to the concrete behaviour, will and interest of the States’.^[19] Simultaneously, the law has to be normative in the sense that it has to be ‘opposable to State policy’.^[20] This contradiction inherent in the need for both normativity and concreteness leads to descending and ascending patterns in legal justification. Legal obligations are either traced down to ‘justice, common interests, progress, nature of the world, community or other similar ideas to which it is common that they are anterior, or superior, to State behaviour’ (descending pattern of justification) or legal justifications of obligation and order in international affairs ‘takes as given the existence of States and attempts to construct a normative order on the basis of the “factual” State behaviour, will, and interest’ (ascending pattern of justification)’.^[21] Koskenniemi argues that ‘[t]he two patterns – or sets of arguments – are both exhaustive and mutually exclusive’.^[22] The dynamics of international legal argument are defined by constant shifts between these positions. The result is the radical indeterminacy of international law, which in turn is a result of this fundamental contradiction: ‘International legal discourse is incoherent as it incorporates contradictory assumptions about what it is to argue objectively about norms. This gives rise to conflicting legal arguments and the inability to prefer any of them’.^[23] To seem coherent, individual arguments have to stress either normativity or concreteness, descending or ascending patterns of justification. In doing so, however, they become vulnerable to valid criticism from the opposing perspective. ‘The choice of solution is dependent on an ultimately arbitrary choice to stop the criticisms at one point instead of another’.^[24] Koskenniemi highlights, however, that even though it is possible to justify any kind of practice in terms of international legal argument, in practice, it is not arbitrary at all which actions are justified and which ones are condemned. This is due to what Koskenniemi calls 'structural bias', which means that international legal institutions are designed to favour the status quo.^[25]

E. Premises of Specific Critical Approaches to International Law

Even though they do not all adopt Koskenniemi's linguistic analysis of international law and differ from Koskenniemi in many other aspects, one way of characterising the other critical approaches to international law, which will be presented in the following sub-chapters, is that they offer focused accounts on specific 'structural biases' of international law. Feminist and queer theory approaches critique international law's bias favouring and centering men, while Third World Approaches focus on how international law is structured in a way that favours the Global North, harming the Global South. Marxist Approaches offer an entirely different view on international law's contradictory nature and oppressive structure. They do, however, share the view that international law produces and favours the status quo with all its exploitation and violence.

F. Conclusion

The approaches presented in this chapter offer different ways of thinking about international law. Any way of engaging with international law presupposes doing so using a specific lens or approach. This is true even and especially for the traditional doctrinal approach, even though this approach is rarely made explicit. The following sub-chapters present positivism, feminist and queer theory, Third World Approaches to International Law, and Marxist approaches to international law in more detail.

Conclusion

Summary I
Summary II