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Public International Law/History of International Law/Decolonization

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A. What is Decolonisation?
The term ‘decolonisation’ most typically refers to the dissolution of European empires in the aftermath of the second world war— the time period between 1940’s-1970’s. This period is marked as a watershed moment in the history of international order when a large majority of former European colonies gained independence and became states in their own right. Concurrent to this, international law recognised a fundamental right to self-determination. The acquisition of sovereignty and rights of self-determination of non-European peoples in the mid-20th century marked the end of an epoch of explicitly racialist international law and politics. At the same time, scholars of third world sovereignty note important limitations to a state-centric theory of decolonisation. For instance, the newly independent states were born into a system, the rules of which had already been largely established against their favour. Scholars of sovereignty have noted the peculiar position of former colonies in the international order even since the dissolution of formal imperialism. Anthony Anghie has put it “the acquisition of sovereignty by the Third World was an extraordinarily significant event; and yet, various limitations and disadvantages appeared to be somehow peculiarly connected with that sovereignty”. Similarly, in his analysis of African independence, Grovogui notes that there is a common misunderstanding in theories of international order which “equate the transfer of political power, however limited, from the coloniser to the colonised, with African self-determination and an assumption of national sovereignty”. Grovogui’s analysis remains pertinent even today, and can be extended far beyond the African continent. The era of formal colonisation is over, nevertheless, the formerly occupied states still remain subordinated members of international order. The terms “global south”, “third world” or “developing countries” try to allude to this power differential. Accordingly, more and more scholars think of decolonisation as something further that needs to be done.

Today, there are at least two ways in which the term ‘decolonisation’ is deployed in the literature. First, decolonisation as the very concrete, legal and political practice whereby former colonies gained their independence, i.e. they began to practice the right of self-determination. It is perhaps more fruitful to refer to this temporal aspect of decolonisation as the decolonisation era or the Independence era, because it is now quite well established that even though territorial empire is now over, western dominance continues in different forms through a number of issue areas including the doctrines, concepts and processes of international law. The second sense in which decolonisation is addressed in the literature really builds on the limitations of the first, and requires us to take stock of our history, ongoing power relations and epistemological practices. This chapter proceeds by first outlining the classical theory of decolonisation in international law and international relations and then considering some of the historical and contemporary critiques of this idea. The main goal is to highlight the different ways in which the term “decolonisation” is used in international law research ties into larger questions about how international legal scholarship either aligns with or ties into the practices of global power.

B. Decolonisation as ‘Inclusion’ into International Society:  A State-Centric History of International Order
International law scholars borrow their understandings of the term decolonisation from the sister disciplines of political theory and international relations. The classical understanding of decolonisation draws upon Hedley Bull’s 1984 exegesis on the ‘expansion of international society’. In this account of the history of international order, a sharp break is posited between the world during colonialism and the world after it. The state features as one of the most important basic units in the practice and study of international law and global politics. The history of the state is also vital to understanding the meanings, possibilities and limitations of ‘decolonisation’ in the contemporary age. The origins of the modern state are often narrated as beginning in Europe, with the Treaty of Westphalia 1648. Historians have shown that it is far too simplistic to argue that the modern state was born from the Treaty of Westphalia in the 17th century, and have shown a range of other historical genealogies in which its emergence can rightfully be placed. Nevertheless, the myth of Westphalia remains an important heuristic: a highly simplified analytical tool rather than factual record. As the basic political unit of international order, in international legal theory, a state is a recognised as a “sovereign”. During the longue durée of colonialism, the body of thought that today we will readily accept as international law operated with a pernicious eurocentric and racial bias. While European monarchs, and heads of state were readily accepted as legitimate and worthy members of international society, this was not the case for the rest of the world. The legal and political theory status of European colonies —the majority world, was firmly organised around the racialised ‘standard of civilisation’. In the worldview of European jurists, non-white and non-Christian societies were seen as too backwards, childlike and savage to be considered complete legal and political subjects. Despite the development of ideas about liberty and equality in Enlightenment Europe, these noble ideas were not reserved for European men. Everybody else was still considered as lacking legal capacity for self-rule. Anghie has powerfully shown that international law imagined the world outside Europe as being devoid of “sovereignty”, an attribute that was solely reserved for European societies. Accordingly, it was posited that European colonial officers would govern these backwards people, and civilise them in the ways of the modern world. This was the infamous “white man’s burden” that continued well into the 20th century. It is an ugly feature of international law that 19th and 20th century doctrine only conferred juridical capacity on the basis of race and religion. Legal theory drew upon a self-serving worldview that placed Europe at the centre and apogee of world development and forced unequal and non-reciprocal relations on the rest of the world via the construct of perpetual and temporary legal burdens: “Permanent burdens encroached on the sovereignty of the other and created effects that impaired the other’s ability to act on its own behalf. Such burdens, designed to last in perpetuity, disallowed all future denunciations by the burdened party.”

Today, it is hardly a controversial claim to say that historically, international law facilitated and justified European colonial expansion and the domination through its theories and doctrine. This starkly unjust system of organising political power comes clearly into focus if we consider Article 22 of the League of Nations Covenant. After the first world war, the Allied powers seized the colonial holdings of the losing powers, namely the Ottoman Empire and Germany. Article 22 states: “To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.” The same provision further illustrates the racial principle underwriting international legal thought at the time. In article 22, it is further recognised that peoples’ belonging to the former Turkish Empire had reached a “stage of development” sufficient for them to be granted independence. By contrast, the people of Africa, South Pacific Islands and beyond were not yet considered competent for self-government. Subsumed under the sovereignty of Europeans, certain colonial holdings simply passed from one European sovereign to another, like war loot. Getachew stresses how even those exceptional regions that managed to avoid formal colonisation, such as Ethiopia, were similarly rendered into the actions of the League rendered “impossible” black sovereignty. This racial governance was, of course, contested: the problem was that international law itself had not yet acquired sufficient tools and vocabulary to address the problem of colonisation. The historian Erez Manela has shown, when Woodrow Wilson wrote his fourteen points charter for self-determination, it was not intended to apply to the whole world. Rather, Wilson’s campaign for self-determination only extended to peoples of Central and Eastern Europe. Historically, in the eyes of international law, it was inconceivable for a non-European state to exist in relations of equality with their counterparts in Europe. The extension of racial worldviews into legal doctrine meant that non-Europeans could not be bearers of a right to self-determination. As James Crawford notes: “self-determination is, at the most basic level, a principle concerned with the right to be a State.” “Sovereignty” was an essential quality of statehood, which was basically unavailable to most non-European societies. The Montevideo Convention on the Rights and Duties of States 1933 is today considered the formal criteria for statehood in international law. Article 1 lays out the requirement for a) government b) territory c) population and d) a capacity to enter into international relations. While it may very well be argued that numerous non-European polities fulfilled this criteria, racial dogma excluded them from ‘government’ and the ‘capacity to enter into international relations’. As Bull puts it “political entities were entitled to recognition as sovereign states only if they met certain formal criteria of statehood.” And as Anghie has further shown, this was historically considered exclusively the reserve of European peoples. A voluminous literature has highlighted the numerous issues at stake in the recognition of a new state in international law: the two major approaches to state recognition have been the doctrine of ‘constitutive recognition’ and the doctrine of ‘declarative recognition’. The first refers to the historical state practice, where it is not enough for a state to declare itself independent and sovereign, it also had to be accepted by international society. On this point, Bull notes: “the doctrine that states do not have sovereignty apart from recognition of it by others, the doctrine of so-called ‘constitutive recognition’ which European states in the late nineteenth and early twentieth centuries came to apply to Asian and African states is one which is widely viewed today as having been an instrument of European dominance.” The latter —the doctrine of declarative recognition of statehood, is today considered more important, but still, a tension between the two does continue to exist. To this end, we might say that the recognition of statehood remains essentially tied into global power politics. The above described legal and political doctrines about sovereignty, self-determination and statehood had major implications for what international lawyers considered to be ‘the international’ of international law. During the centuries of colonial rule of the earth, the Westphalian state system only referred to Euro-American international affairs. In the 1950’s, Carl Schmitt, the European international lawyer, wrote that international law was the realm of European states, their practices of knowing and relating to each other. Despite these legal doctrines, and political violence of the colonial international order, ideas about self-determination were appropriated and demanded across the different continents. Throughout the early 20th century, independence movements were fomenting and culminated in the decolonisation era in the aftermath of the second world war. Between 1940-1970 the majority of European overseas colonies gained their independence from European Empires. In this regard, ‘decolonisation’ is understood as the recognition of right of self-determination of non-European peoples. In the post-1945 era, European powers recognised the statehood and sovereignty of countries in Asia, Africa and Latin America, and this watershed moment in the history of international order is known as the era of “decolonisation”. The fact of decolonisation is marked as a momentous event in the history of international order. Whereas for centuries it was considered that the non-European world had nothing to do with international law, since the 1940’s there had been a steady stream of new additions joining the United Nations, thereby forever changing the composition of ‘the international’. Decolonisation can be best pictured if we consider the evolution of the world map over the past two centuries. Coggins notes that, in 1816, the international system comprised of only 25 members. Over the course of the 20th century, the international order witnessed the birth of 150 new states. Not all of these were born from the succession of colonial empires, but this does hold true for the vast majority of the new additions. The world went from being represented as a collection of European empires, to a system of neatly bordered, formally equal, political units— the Westphalian state system.

This was the context in which Hedley Bull and Adam Watson, scholars of International Relations wrote their theory of the Expansion of International Society. This account has taken up a canonical status in the history and theory of international order. In their understanding, a truly universal international space only came into being at the time of the decolonisation era. Their main argument was that former colonies, who were up until the moment of their independence excluded from international society, came to be finally ‘included’ in the system of international relations once they gained Independence. In this way, the international realm, once only reserved for European states, transformed into a universal society of states. Today, when we speak of the Westphalian world system, we are alluding to the idea of formally, equal, sovereign states, co-existing together in a condition of anarchy. No legal authority governs over these.

The independence movements that swept the globe during the mid-late 20th century had profound effects on both the history and theory of “international order”. As Bull suggested, one way of charting the expansion of international society was the expanding membership of the United Nations, and the related fora of international law-making. The presence of an ever more diverse body of representatives at the international organisations, such as the United Nations General Assembly and other international platforms called for a renewed theorisation of these developments of international order. The changing composition of international society also stirred a change in the doctrines of international law. In 1960, General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples. It declared: “all peoples have the right to self-determination” and to pursue the path of their own economic, social and cultural development. It further condemned and outlawed those historical narratives of colonial domination that posited non-European peoples as childlike and unprepared for self-government. This Declaration was widely pushed through by the African bloc at the United Nations, and Getachew has described it as a “radical rupture” in the history of international order. Within a very short period of time, anticolonial movements had hacked away at the assiduous idea that certain races of mankind were not prepared for self-government and replaced it with the idea that self-determination was a fundamental human right. For instance, the earlier Universal Declaration of Human Rights 1948, makes no mention of self-determination. This was an intentional framing to ensure no further challenges to European territorial empire. By the 1960’s colonialism was considered an international crime, and self-determination emerged as a fundamental human right. In the jurisprudence of international law, the idea was taken up and extended into more concrete principles of international law. Since the decolonisation era, the international court of justice has declared the principle of self-determination to be a general principle of international law as well as being of such a unique and special nature, as to having an erga omnes.

Watson and Bull’s ‘inclusion thesis’ posits that “the global south” was included in international society for the first time during the post-world war II era. By inclusion into international society, there is also a further, assumption about ‘the end of colonialism’ and the onset of a fair world system governed by human rights and the rule of law. As Grovogui noted, in the post-1945 order there is a strong assumption that colonialism was over. We can all agree that the decolonisation era was in many respects a rupture from the old, explicitly racialised system of managing international law and politics. Not only were the international institutions undergoing a change with the admission of new states, but also, these new states were sparking new developments in the doctrines of international law. Above we have discussed the recognition and development of the principle of self-determination. By the same token, we should be wary of crediting the historical decades of the 1940’s-70’s, as symbolising a far greater or radical break from the past. Let us now consider some of the shortcomings and critiques of equating the decolonisation era with decolonisation as completed.

C. Thinking Beyond the ‘Inclusion Thesis’ and the Long Road to Decolonisation
A number of problems open up when we take a closer look at this “inclusion thesis”. An enormous volume of international legal and political theory has addressed the shortcomings of taking the Westphalian Peace as our starting point for discussing international affair s. While it is beyond the scope of this essay to cover the breadth of this literature, I will limit my discussion to the problem of the state and the remaining problem of inequality within the international order since the Independence era. The ‘inclusion thesis’ narrates a progressive, eurocentric history of international order. It tells the history of international society as one of constant betterment, whilst also placing Euro-American or Western societies at the centre and the benchmark against which all others are gauged. The main point worth stressing here is that while it is largely assumed that once former colonies gained their status as independent states in their own right, colonialism was over. Instead, in recent years, a critical historiography of international order has highlighted the need to rethink what we mean when we talk about decolonisation. Rather than thinking in terms of a sharp break:  a before and after colonialism, it makes more sense to talk about “decolonisation” as a more hopeful, forward-looking ideal. The recognition of statehood is just one, albeit crucially important step, in the long road to decolonisation.

Both postcolonial and decolonial traditions start from the recognition that inequality in the global order is tied into structural inequalities, formulated in law, reproduced through legal practice and international institutions. While these were born from the colonial era, they have certainly changed form over time. Additionally, in recent years, scholars of international law have started to recognise that international law scholars do not merely describe legal practice, they actively shape it too. To this end, our knowledge systems are equally important in shaping the normative content of international law. The ‘post’ in postcolonial or the ‘de’ in decolonial, as theoretical traditions do not stand for the temporal idea, after colonialism, signifying the end. Rather they point to a body of knowledge, that seeks to contest and highlight colonial domination and its legacies. Third World approaches to International Law (TWAIL) thus try to take on the role of critique and transformation through engaging with the colonial encounter. In the following section, I outline the disjuncture between the theories and practice of Statehood and non-western agency within international order. The objective of my discussion is to show that far from being over, decolonisation is an ongoing practice that involves the practice of reflexivity, critique, and eventually the hope of transformation. As Getachew has put it: “Rather than tether the idea of independent and equal states to the legacy of Westphalia, we should identify this vision of international order with an anti-imperialism that went beyond the demand for the inclusion of new states to imagine an egalitarian world order.”

I. Statehood:  The End or the Beginning of Decolonisation?
The first line of critique is that the formal recognition of statehood did not go far enough to alter the relations of power flowing through the international system of states. There is a common misunderstanding that the post-1945 era somehow also marked the end of colonialism. “The proponents of these views have presumed decolonisation to be an end in itself.” Today we know very well, that the decolonisation era did not birth a perfect international order of equality and justice. While the legal-political theory concept of the Westphalian world system composed of equal, sovereign states is a useful heuristic, this could not be further from reality. Great powers continue to dominate the international order and the most disenfranchised communities of the world continue to suffer exploitation, low standards of living and are also expected to bear the harshest effects of impending environmental and climate disasters. To this end, a number of have argued that the power relations born from imperialism merely transformed or changed shape but the core issues of “civilisation” or essential difference between the west and rest is continually reproduced.

Watson and Bull’s account of the expansion of international society tells a progressive story about the state, as arising through purely European agency during the 17th century, Peace of Westphalia. The European origins of the state are then placed in a linear story of progress, where over time, the entire world would come to adopt this model of political organisation. As far as the newly independent states were concerned, their main role was to follow the model of Europe and emulate development through the guidance and voluntary charitable development aid of the west. This historical framing is eurocentric, to the extent, that it still places European societies as the universal benchmark, which all others should aspire to and are judged. Further, it leaves us with very limited analytical tools to understand and talk about the power differentials between the global north and south.

If it is true that European states emerged from the Peace of Westphalia in the 17th century, what role did colonialism play in the formation of these states? The Westphalian myth implies that these states arose endogenously out of purely European agency. When Vattel was writing about the family of European nations, each equal and sovereign, he was committing a quite problematic theoretical blunder by saying nothing about the same states’ overseas colonial holdings. Bhambra even argues that it does not make sense to even talk about a Westphalian system of states prior to the decolonisation era. All the states that were supposedly involved in this system, were actually imperial-nation states. This point was not unknown to the politicians and thinkers of bygone eras. In fact, we may say this was precisely the context in which early anti-colonial thinkers such as Aimé Césaire spoke of the intimate relationship between the coloniser and the colonised.

As for the newly emergent states, we are the left to wonder why it is despite their putative decolonisation, they continue to be haunted by war, poverty and human suffering. In other words, how do we explain the fact of their ongoing subordination in international society? Positivist understandings of international order will blame these purely on internal factors (corruption, bad governance, cultural deficiency) rather than external factors (their position and role in international society). By contrast, leaders of decolonising nations knew very well that they were being born into a world that was stacked against them. Kwame Nkrumah, a leader of the Pan-African movement, and the first premier of Independent Ghana had devised the term “neo-colonialism” to grasp at the particular problem of third world states. He described neo-colonialism in the following terms: “the State which is subject to it is, in theory, independent and has all the outward trappings of international sovereignty. In reality its economic system and thus its political policy is directed from outside.” In his regard, “independence means much more than merely being able free to fly our own flag and to play our own national anthem.”  Even during the decolonisation decades, many of the thinkers and leaders of anti-colonial movement were quite clear on one thing:  that the recognition of statehood itself did not go far enough in the establishment of de facto equality in the international system. By this token, the recognition of sovereignty was considered merely a formalistic first step, but the more pressing and urgent matter was how a different, more egalitarian world would be made. Contemporaries of the time clearly recognised that the utopian project of building a better world was still a pending matter. The question of how exactly such a future would be built was fraught, but nevertheless, a point worthy of debate and discussion. this point. Moreover, while many of the newly emergent states hoped that international law would be a useful vehicle for enacting change, as we shall see in 3B their efforts to author change has historically been resisted, and thwarted by former colonising powers.

A formalistic fixation on the Westphalian world system as implying de facto equality in the international order has important theoretical implications. In recent years, a large body of global history research has suggested that rather than thinking of the state as having a neatly bordered off history, it is more appropriate to think of it as entangled within a larger web of relations. Similarly, Marxist inspired understandings of ‘world systems’ also indicate that it is premature to celebrate the end of colonialism. Barkawi and Laffey have instead noted that focusing only on the Westphalian model of international organisation “obscures” the ongoing role of imperialism in international affairs. Instead, they propose “a thick set of relations”. This may include many things, including economic, political, military and social-cultural relations which allow us to gain more meaningful insight into how hierarchy is still a feature of contemporary world affairs. Getachew similarly insists, that we need to revise our understanding of decolonisation to understand what kind of work was being performed by colonialism. She proposes the concept of “unequal integration”. Contra the ‘inclusion thesis’, Getachew powerfully argues that it is wrong to think that at any point in world history, the colonies were somehow ‘outside’ of international society. They have always been part of the same world, but have always been subjected to regimes of domination. She suggests, “colonies and peripheral states were internal to international society but appeared in that space as unequal and subordinated members.” Despite the fictions and self-serving theories of imperial narratives, the colonies were always members of the international realm, but rather they existed in a position of partial and burdened membership in international society. This did not stem from exclusion, but rather from inclusion on more burdened terms. In sum, Getachew suggests that there is a long continuity from empire, to the international to the contemporary era of global governance. She shows how it is both empirically and theoretically incoherent to assume, as Bull and Watson do, that colonies simply didn’t exist in international society. They were very much part of the international family of nations, but they existed in a subordinated position. And they continue to be subordinated. In this sense, despite all the advances and rising powers, for the most part the position of the global south, remains still at the bottom of a hierarchy. This is most starkly visible when we think about climate change, corona virus response and vaccine distribution, and even more everyday governance practices of mobility, refugees, etc.

The ‘inclusion thesis’ posits a limited, state-centric understandings of decolonisation. In the last twenty years, an illustrious list of scholars have turned their focus to the problem of the supposed ‘end’ of colonialism at some point during the post-1945 order. To this end, we might argue that rather than focusing on ‘the state’ as the end-form and goal of decolonisation, it might be argued that it is more appropriate to see the acquisition of sovereignty and statehood as the beginning of the long road to decolonisation. It is important to point out that the primary subject of international law is the state. The Westphalian state system refers to a kind of de jure equality, which means that the law does not account for power hierarchies in its assessment of legal questions. Accordingly, the courts have tended treat “decolonisation” as synonymous with the acquisition of statehood.

The ICJ has attended to a number of cases that dealt with the multifaceted issue of decolonisation. The practice of the courts suggests that “decolonisation” is complete at the moment when political rule is transferred from European hands to local hands —purely as a matter of self-rule. Take for instance the recent advisory opinion on the Chagos Archipelago. The ICJ was asked to advise on whether the decolonisation of Mauritius was complete in 1968 when Britain handed over control of the vast majority of the Islands. In its written submissions, Mauritius itself claimed that decolonisation would only be complete if the territorial integrity of Mauritius was respected and the ongoing occupation of the partitioned Chagos Islands was stopped. To all parties concerned, decolonisation was simply about the ongoing British occupation and administration of parts of territory that belonged to Mauritius. A certain statist logic underlies the very structure of international law—the state is the primary subject of international law. In the jurisprudence we can observe a sharp differentiation between legal and political science approaches to ‘decolonisation’. While international law treats Independence as synonymous with a completed process of decolonisation, social scientific approaches to decolonisation adopt a more cautious approach. In the positivist application of law, courts leave aside, concerns about whether the newly emergent states actually hold any realistic possibilities for breaking from colonial, political, economic and social power asymmetries is simply left untouched. To this end, we can posit a simple question. While international law considers the process of decolonisation as one that is completed upon the acquisition of sovereignty, it leaves open the question of whether this goes far enough?

II. Struggle and Third World Authorship of ‘the International’
Watson and Bull’s theory of international society speaks of the inclusion of former colonies into ‘the international’ as a society of states. While the heuristic of a formally equally system of states is a nice idea, it would be naïve to assume that it is a reality. The Westphalian world system is foremost a theoretical construct. Its key international component—“anarchy” is a recognition that in international law there is no final sovereign authority beyond a state. Nevertheless, as scores of international relations scholars have shown, rather than states actually existing in a state of anarchy, states are embedded in a field of power relations. As we have been discussing in previous sections, it is rather more accurate to say that third world states were born into a world where the rules of international order were firmly entrenched against their favour. The conventional story posits that, by mere inclusion, a truly universal society of states was formed. What then might we say about the relationship between international law and the emergence of a putatively universal international society? Alongside the inclusion thesis, there is a strong assumption that the international law of the post-1945 era was fully decolonised, based on principles of equality and human rights. Rajagopal argues that in this “self-image the new international law of human rights effectively superseded the old international law of colonialism.” There are important qualifications to this sharp break between ‘old international law’ and ‘new international law’. Yasauki suggests that in the decolonisation era, there was no reciprocal and harmonious meeting point of all the world’s legal traditions but rather, there was a universalisation of eurocentric international law. Along with Getachew, we might then argue that the tendency to view ‘decolonisation’ as implying universality and consensus within the international order is more a rhetorical move than it is factual reality. The Inclusion Thesis cuts directly into the question of what is decolonisation, and touches upon the themes of statehood, self-determination and the limits of ‘sovereignty’ as a means of achieving more abstract ideals of global justice and equality. Once upon a time, international law facilitated the colonial expansion and domination of non-western societies. Anghie has shown how the very concept of sovereignty was forged as a legal fiction to aid this practice. Lorca asked how far the rules of international law actually changed after the admission of non-western states? The answer to this question is not so straightforward. Even after sovereignty was extended to non-Europeans, it was clear that this did not translate into a radical revision of global power hierarchies. Moreover, as Lorca suggests, sovereignty itself had run out of steam as a mode of organising international law and relations. What then might we say about international law’s role in facilitating or thwarting the long road to decolonisation?

The answer in large depends on how you understand the history and theory of international order. The ‘inclusion thesis’ narrates historical developments as a process of ‘diffusion’. The diffusion narrative has come under sharp criticism for depoliticising core problems of the international order. This style of re-telling the development of international order completely glosses over the struggles, ideas and agency of the world outside the West. The diffusion narrative tells of the emergence of a decolonised world —the Westphalian world system, through the simple spread of noble ideas, first emerging in Europe and then diffusing through the international order. Europe remains firmly ensconced in the centre:  A major problem with treating colonialism as something that was amicably resolved during the 20th century is that it ‘forgets’ the long history of struggle that has underwritten third world attempts at rescripting the international order in its favour. Hobson has put it in quite sharp terms:  “non-western agency all but disappears into the deep, shadowy recesses of the blinding light cast by Western civilization”.

A diffusionist account which simply reproduces the same structures of colonial knowledge that binds the rest of the world into the game of ‘catching up’ with European societies and erases the struggle, ideas and voices of the non-western world. Recognising this point, over the years, there has been a shift in how scholars address the problem of the third world and its inclusion, or integration in international society. At the time of decolonisation numerous European international lawyers and politicians worried amongst themselves that status quo would be rendered corrupt and unwieldy with the addition of new members. To this end, third world international lawyers also tried to prove that such a threat was not warranted. They went about showing how the so-called purely European legal constructs and political ideals, actually had shared roots. Across diverse areas of international law (and politics) knowledge, it has been shown that ideas such as equality, women’s rights , the law of the seas , the law of nations , human rights were born from the colonial encounter. Despite the shared roots of many of the legal concepts and doctrines of international law, the problem of eurocentrism remains. A second generation of TWAIL research has shown that power continues to delimit the normative content of international law and thus, the rules of international order. The benchmark against which all others are measured and it is then asked of them:  how far they have contributed to the development of supposedly universal rules. It is also worth pointing out that no sooner than the UNGA ‘expanded’ to include a fairer representation of international society, other more exclusive platforms of organising world affairs, such as the G7 began to pop up. Moreover, if we consider the constitution of some of the most powerful arms of the United Nations such as the Security Council, again there is dominance of certain colonial powers.

Recent interventions go a bit further to show that non-western attempts at authoring international order suggest that “decolonisation” had more radical potential than merely the recognition of statehood. In her pathbreaking work, Getachew’s historical research has shown that subsumed under the gloss of the ‘inclusion thesis’ it is possible to glean a number of alternative imaginaries of world order. Getachew conceptualises numerous strands of Afro-Caribbean ideational experiments with how the world might be organised in more equal terms as “postcolonial cosmopolitanism”. Indeed, as I mentioned earlier, leaders of the various independence movements in the third world saw Independence as a necessary first step in the longer road to decolonising international society. Leaders of the past were well aware that these precarious new states were being birthed into a world where their historical role had been to supply labour and raw materials to the metropole. Accordingly, their experiments with internationalism and political economy were geared towards a redistribution of wealth between and inside nations. Attending to their efforts of ‘worldmaking’ or rescripting the international order was a forward-looking, hopeful project about redefining the terms on which former colonies and metropoles related to each other. These clearly went beyond just the fact of recognition of sovereignty or statehood.

The Bandung Conferences illustrate this point well. In 1955, a conference between leaders of the formerly colonised world was held at Bandung, in Indonesia. Members from newly independent states, states on the cusp of independence, and those still engaged in the struggle. The aim of the conference was to be a show of solidarity between the colonised peoples of the world —the majority world, but also to begin the important work of re-imagining the terms upon which global order would unfold. Bandung was born from many of the struggles that newly emerging states were facing in the post-1945 international order. Great powers and international institutions were rather more hostile to the first waves of independence than is implied in the “diffusion” narrative. As Lyon suggests, in the 1950’s there was a deadlock over United Nations membership for new states, and a severe backlash against independence movements since 1947-8. Further, the United Nations and developments of international law continued to focus on Cold War rivalries as the more important topic of international law and side-lined the concerns and imperatives of the majority world. It has been observed that the various leaders at Bandung disagreed on many things, including the very key question of what they believed ultimately to be the ‘wrong’ of colonialism beyond simplistically, alien-rule. Of the few things they did agree on, was “developmentalism” accompanied with a broader, idealism that the newly founded states would take an active role in restructuring the terms on which they were integrated into international society. As Eslava et.al argue, it was also hoped that international law would play a key role in creatively remaking the world on more equal terms. The various social, political and economic committees of the Bandung conference went about detailing points for how to go about doing this.

According to the third world movements’ program of reordering the world, economic justice took central focus. Development was considered as a way to overcome power differentials between the West and the rest. The UN Declaration on the Right to Development 1968, framed development as an inalienable right. But as Rajagopal and others have highlighted, the robustness of this development discourse petered out by the late 1960s. It is also pertinent to remember the fierce struggle from which this watered down right to development was forged. International lawyers of the global north argued that  development could not be enforced against anyone in particular, and thus was not a legally enforceable right per se. It gave rise to no new obligations or duties. For the rest, particularly the G77, they authored the NIEO it was one of the most important agendas for undoing the violence of colonialism. Pahuja has shown how successive efforts of by third world alliances to renegotiate the international economic order in their favour were thwarted by Global North actors. She charts how the Global South demand to safeguard ‘Permanent Sovereignty over Natural Resources’ in the 1950’s was gradually hollowed away to a meek discussion about safeguarding foreign direct investment instead. She further, tracks how Third World attempts to renegotiate economic relations in the post-cold war era, spoke in the grammar of the rule of international law between states. Pahuja painstakingly shows how this potentially radical demand was reduced to a conversation about good governance and institution building inside developing states. We might then say that Global North actors went about delimiting the normative content of what development would or could be. Hurrell observes that since the decolonisation era, “all of the high-income countries have been extremely vigilant in resisting anything that might be interpreted as a formal commitment to economic justice.” Power and the continued hegemony of the global north has delimited the normative content of what development would or could be.

Let us now return to the question posed at the beginning of this section. What can we say about the relationship between the Third World and international law since the decolonisation era? The inclusion thesis rests on a thin concept of consent and shared values within an international system. Bull wrote, for instance, that a truly international society only came into being when ‘a common international system’ evolved, where the different European and non-European members came to understand themselves as having “common interests a structure of coexistence and co-operation, and tacitly or explicitly consent[ed] to common rules and institutions”. The question of power nevertheless continues to haunt the law and politics of post-1945 world order. Great power politics still dominate international law. And the concerns of the most vulnerable persons in the world seem to be rendered more and more irrelevant to the developments of international law. To this end, Simpson has referred to “legalised hierarchies” within the international order. Others have asked more pessimistically what the third world may expect from international law? If we accept the inclusion thesis, then we can only arrive at a very cynical conclusion about contemporary international law. The West had figured out what the most ideal forms of political organisation were, and it was now up to the rest to catch up to this image of perfection. Yet as recent work on the North-South divide has shown, the historical Brandt line continues to be relevant today. The third world’s efforts at rescripting the international order in its favour have frequently been thwarted. For the most part international law aligned with the interests of Euro-American dominated status quo rather than opening up any new possibilities for uplifting the peoples and places in the global south. In other words, a sharp discontinuity is not quite warranted. The newly emergent states were bound to certain legal traditions, customs and processes, all of which are equally shaped by power — both historical and contemporary. A North-South divide is a regular pattern in the onward development of international law since the 1940’s, and this point is particularly instructive to our discussions about decolonisation in international law. The inequalities of the international order, then get relegated as matters of knowledge and correct interpretation of supposedly universal rules and customs which are known and articulated by the Universal west. This has been explored in discussions over climate change, development, definition of racism, law of warfare, and beyond. Baxi points out that the struggle over the normative content of international rules often takes place in the form of a contest over “the technical versus the political elements”. In the same vein, Kennedy is sharply critical of the technocratic global governance literature that elides the politics of economic decision-making under a veneer of expertise. Moyn refers puts the matter quite aptly: “to understand expertise is to grasp how the terms of debate and decision about solutions end up reinstating problems.”

It is often suggested that Bandung was a failure. Despite its idealistic appeal, Bandung failed at achieving many of the hopes that it had nurtured. In the long run, Bandung is part of the legacy of anti-colonial movements and solidarity in the international order. To this end, it has been argued that “if Westphalia serves as the creation myth of international law, the myth of Bandung is its counterpoint”. Certainly, it is vital to recover non-western contributions and challenges to international law. At the same time, it is important not to over-romanticise Bandung. The leaders of the third world  were not perfect. Their nationalism has been critiqued from a  number of angles:  in terms of women’s movements, environment, and more. This critical historiography of Bandung, and the third world movement brings us back to the problem of a state-centric analysis. Or, at least the problems of simplistic narratives about decolonisation. As Chimni has suggested we need not only to be wary of treating the entire global south as a monolith:  not only have various third world elites historically sanctioned off economic prospects for their brethren in their obedience to the demands of economic globalisation. Similarly, it might be argued that a discussion entirely focused on North – South conflict, overlooks the newly emerging BRIC powers and newer projects of transnational capitalist land grab and appropriation across the world.

D. Limits and Possibilities of Decolonisation
So far, in this essay I have proceeded by first highlighting the standard account of decolonisation in international law. The classical exposition of ‘decolonisation’ is found in Hedley Bull and Adam Watson’s 1984 text, The Expansion of International Society, which was written more than forty years ago. Since then, a wealth of literature has highlighted the problems with the inclusion thesis. In part C, of this paper I have summarised the main critiques of the inclusion thesis, as underwritten by a progressive, eurocentric history of international order. Whether we think of decolonisation as something that has already happened and “completed” or whether we consider coloniality as a useful lens to view the dynamics of international law largely depends on the history and theory of international law that we subscribe to. In this section, I highlight a second, more recent way in which “decolonisation” is spoken about in the literature. Building upon the insights of new histories and TWAIL engagements with international law, in recent years there have been numerous calls to “decolonise” international law. This second reference to decolonisation departs quite sharply from positivist understandings of decolonisation as something that was completed by the 1980’s and recognises the importance of history and theory in shaping our understanding of what is decolonisation, its limits and possibilities. A eurocentric narrative of decolonisation treats the matter as something that was done and dusted at the time when alien-rule was outlawed in international law. This second call to “decolonisation” speaks about it  in a more forward-looking way, as something that can be achieved in the future. More crucially, this second call to “decolonisation” also recognises the importance of knowledge in the long road to decolonisation.

In the 1970s, alongside with the full swing of independence movements, the important field of knowledge called postcolonial studies was born. The main argument posited by Said was that power and knowledge go hand in hand. This idea was taken up in numerous ‘critical’ approaches to law, from the Critical legal studies (CLS) to Third World Approaches to International Law (TWAIL) and a more general turn to history in the discipline. Scholars working in the critical tradition recognise the value of critique for positive transformation. They recognise that much of the canon of knowledge is eurocentric and this limits the possibilities of what we think can be achieved by and through international law. They try to answer the same questions that were asked in the mid-20th century :   can international law be deployed in a way to enact more just economic, social and political relations between the different peoples and places of the world?

Most scholars will accept that the project of decolonisation is a long-term commitment. It requires us to think critically about the foundations of international law, the stories we tell about it, and even the way we teach it at universities. It is in this sense that more recently students of various disciplines across law, the social sciences and humanities have demanded a “decolonisation” of the curriculum of their studies. This second call to decolonise speaks to the decolonisation of international law:  its doctrines, theories and knowledge produced about these. It takes seriously the problem of power and knowledge in shaping our understandings of what is possible through international law. In the past two decades, scholars have turned to the history and theory of international law. And one of the major points of interest for this scholarship have been to question why international law continues to have a fraught relationship with the global south. Nearly concurrently, there is also a debate about the emancipatory potential of international law. Time and again, scholars have shown how the international order is dominated by Great Powers and their interests. Moreover, extensive volumes of research have shown that as a discipline, international law (and international relations)  at least partially, were born from the need to manage Europe’s relations with the rest of the world. Moreover, as I have shown in the above discussion, colonial power did not simply disappear from history after the decolonisation era of the 1940s-1970s. It is more appropriate to say that it transformed and continues to shape controversies across the discipline. What then can we say about decolonisation in international law? Pitts has suggested that international law asserts its universality via rhetoric rather than showing it in practice. Given international law’s constant alignment with power interests some have asked whether it is even worth trying to salvage at this point? Others suggest, that scholarship about international law needs to evolve into more radical, materialist critique. Can these imperial disciplines, be decolonised? This itself is a huge debate, and certainly will not be resolved in the pages of this essay.

They do not provide any concrete answers, but call upon us to observe greater reflexivity in our knowledge production processes. Moreover, Pahuja has also argued that the promise of universality in international law is what makes it so powerful. Since the decolonisation era, different actors from the global south have seized upon this promise in their efforts to enact change. To answer the question of whether it even makes sense to talk about the “decolonisation” of international law, it must be admitted there are no clear answers to give. Perhaps it is misguided to try and fix an answer to this point here and now:  it will rather, be the task of historians of international legal thought to conclude based on future developments. At the same time, we can talk about the limits and possibilities of decolonisation

By now it should be clear that when scholars, courts and international organisations invoke the term “decolonisation” they are not always talking about the same thing. In the above discussion I have discussed Bull and Watson’s Expansion of International Society as underwriting most conventional understandings of decolonisation in international law. This text, written nearly forty years ago provided the first major attempt at theorising the dissolution of European territorial empires,  and along with it, a rejection of an explicitly racialised system of global order. Since the 1970’s, a rich discussion has unfolded at the intersections of legal and political theory about the limitations of the ‘inclusion thesis’. The main point worth stressing is that the inclusion thesis posits a strong discontinuity between the old world of imperialism and the new world of the Westphalian state system. It posits the acquisition of statehood and sovereignty as beings the marking the final end of colonialism. While in no way attempting to undermine the importance of the statehood of non-western territories, my purpose has been to highlight the more concrete problems of inequality that continue to mar international affairs. Building upon the insights of critical scholarship over the last three decades, a new usage of the term ‘decolonisation’ has today emerged in international law. In this regard, the call to “decolonise” international law, speaks to numerous activist and scholarly attempts to think beyond the state-centric inclusion theory as simply marking the end of colonisation and demands of us to reflexively approach concrete methods, legal, political and institutional arrangements which reproduce relations of inequality. This second understanding of “decolonisation” compels us to move beyond positivistic understandings of the social world and to engage complexity, and power in its many guises.

Further Readings

 * Adom Getachew, Worldmaking After Empire: The Rise and Fall of Self-Determination, (New Jersey:  Princeton University Press, 2019)
 * Siba N’ Zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans, Race and Self-Determination in International Law,  (Minneapolis:  University of Minnesota Press, 1996)
 * Antony Anghie, 2006; 2005; 2016
 * Sundhya Pahuja,  Decolonising International Law:  Development, Economic Growth and the Politics of Universality, (Cambridge: Cambridge University Press, 2011)
 * Adam Watson and Hedley Bull (eds.) The Expansion of International Society, (Oxford:  Clarendon Press, 1984)
 * Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds.) Bandung, Global History and International Law:  Critical Pasts and Pending Futures, (Cambridge: Cambridge University Press, 2017)

Conclusion

 * Summary I
 * Summary II


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title: Public International Law/Methodology


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Public International Law/Methodology/Case Analysis

Author: Max Milas "Required knowledge: Precedent in Domestic Law, Sources of International Law, Interaction" "Learning objectives: Evaluating the relevance of cases in international law, researching international cases, applying cases depending on role and objective."

A. Introduction
Cases are not only a "subsidiary means for the determination of rules of law" in international law according to article 38(1)(d) ICJ Statute, but also an influential means of communication in the practice and research of law. For this reason, it is all the more surprising that all popular textbooks of public international law include a section on the relevance of cases, but no section on how to engage with judicial decision as a student, practitioner, or scholar of international law. The following chapter attempts to change that by discussing the relevance of cases, presenting tools to research cases, and introducing methods to use cases in international law. In doing so, this chapter aims to guide students through exams, term papers and moot courts in which case law analysis is key.

B. Relevance of Cases in International Law
According to the traditional reading, cases are one of the four main sources to determine rules of international law. Both judges and scholars of international law deal extensively with prior domestic and international decisions in their publications. Finding and analyzing cases is therefore one of the main tasks of international lawyers.

I. Decisions of International Adjudicative Bodies
On a strict reading of Article 38(1)(d) of the ICJ Statute, judicial decisions are only subsidiary sources of international law. At first glance, this reserved importance is confirmed by the absence of precedents. As cases are generally binding only between the parties involved in the dispute, not against uninvolved parties, no formal concept of precedent exists in international law. This first glance, however, belies the actual realities of international law. Cases shape the modern international legal order at least as much as treaties and customary international law. Courts base their decisions on previous cases to build a coherent system, scholars use cases to adjust their approaches to the realities of international law, and commissions use cases as food for thought when codifying law. This applies not only to judicial decisions but also to communications of commissions, committees, and other quasi-judicial bodies.

International law cases can be differentiated according to different types of applicants and procedures. In most proceedings, two states are in dispute before an international court. This is particularly the case with the ICJ and the International Tribunal for the Law of the Sea (ITLOS). Private parties can also file complaints against states before international human rights courts and investment protection tribunals. Additionally, prosecutors can file cases against individuals before international criminal courts. Finally, international organizations and states can also seek advisory opinions from international tribunals.

Cases can consist of up to four different parts. Under preliminary objections, courts typically address the jurisdiction of the court, the ability of the plaintiff to bring the case to trial (so-called standing), and other admissibility requirements. Under merits, courts present their reasoning and the result of the case. Under reparations, most courts specify the consequences their judgement (e.g., reversal of measures, payment of reparations). Under interpretation, courts may, at the request of the applicant, clarify how a judgment is to be interpreted and whether the respondent has fulfilled its obligations.

II. Domestic Cases in International Law
Domestic court decisions are also covered by 38(1)(d) of the ICJ Statute. It should be noted, however, that domestic decisions are rarely cited. While international decisions are usually cited to ensure a supposed uniformity of the international legal order, the use of domestic decisions often serves to prove customary international law and to secure acceptance by states. By discussing domestic decisions, courts signal to states that their legal traditions are being taken seriously. For this reason, a thorough research on domestic decisions should not only focus on decisions of the usual suspects, but should strive for representativeness.

Although citations are aimed at securing acceptance of international law by all states, studies on citation practices of international courts and textbooks show that primarily cases from Australia, Canada, China, France, Israel, South Africa, the United Kingdom, and the United States are cited. Cases from jurisdictions outside the Global North are very rarely cited. For example, in Arrest Warrant, the ICJ deals solely with the UK House of Lords and French Cour de Cassation. In Jurisdictional Immunities, the ICJ cites decisions from 16 countries in the Global North (Austria, Belgium, Canada, France, Germany, Iceland, Ireland, Italy, New Zealand, Poland, the Netherlands, the United Kingdom, United State, Slovenia, Spain, Switzerland), one regional human rights organization of the Global North (Council of Europe) and only one country in the Global South (Egypt). The White & Case guide for Jessup Moot Court participants on “Researching International Law” echoes this practice and recommends considering decisions from Canada, Australia, and New Zealand for factual matters involving indigenous rights as "those countries have significant indigenous populations", while ignoring Central and South African and South American experiences in addressing indigenous rights.

Admittedly, there are plausible reasons for this: In some cases, only decisions from certain jurisdictions will exist, decisions in English are easy to understand for most international lawyers, many databases contain only judgments from these jurisdictions, and the style of reasoning of these courts is similar to the style of reasoning taught in international law departments around the world. However, this prevalence of English-language decisions in citations is not inevitable, but the result of historical inequalities within the international system. Over the past 400 years, European states in particular have imposed their legal systems on countries on every continent of the world. Today, English is the working language in international institutions, and English-language publications are expected by international law scholars in many regions of the world. In light of these colonial roots of the bias in favour of English-language decisions, a thorough research on domestic decisions should not only try to use decisions of a certain group of states but instead should strive for representativeness. Since discussing domestic decisions serves to establish customary international law and to secure States’ acceptance of international law, the cases used for this must consider as many diverse countries as possible. Otherwise, international law will remain law of only well-recognized states and the international legal order could, with reasonable grounds, lose acceptance, especially in the countries of the Global South.

C. Researching Cases in International Law
Generally, case law analyses have two different starting points: In the first type of question, the student is asked to respond to a general question of international law. The student can only answer this question convincingly if they also engages with international and domestic cases.

In the second type of question, the student must answer a case-specific question. Although this question seems to refer only to one case, the student can only answer this question persuasively if they also considers comparable cases.

Thus, for both types of questions, students must find the applicable case law for persuasive reasoning. For this, students can resort to libraries and online databases.

I. Finding Cases in Libraries
The most obvious, but also the most challenging source for researching case law is printed law reports. The main advantage of law reports is that they are published either by the courts themselves or by distinguished individuals and institutions. Students can therefore be assured that law reports reflect the development of case law comprehensively and authentically. The major disadvantage, however, is their format. Law reports are often only available in print. Many universities and students cannot afford them. Furthermore, printed collections can only be scanned and skimmed in a very time-consuming and error-prone process. Students should therefore use them with great caution. Nevertheless, law reports remain a common source to research case law. The following list provides an overview of the most common law reports in international law:

 * Covering almost all fields of case law in international law
 * International Law Reports (CUP)
 * Oxford Reports on International Law
 * Covering international case law from 1929 to 1945: Annual Digest of Public International Law Cases
 * Decisions of the International Court of Justice: UN Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice
 * International arbitral and judicial awards: United Nations Reports of International Arbitral Awards
 * Decisions of UN judicial bodies: United Nations Juridical Yearbook
 * Law of the sea: ITLOS Annual Reports
 * Cases in the European human rights system: Tim Eicke (ed.), European Human Rights Reports

Many international law journals also contain sections that summarize and assess cases. However, these journals are only suitable to a limited extent for researching cases. First, journals contain only a sample of current decisions, and second, they focus usually on analyzing individual aspects of the case and not on presenting the entire content of the decision. For this reason, journals are recommended resources for case law analysis only after students have already found the relevant cases for their analysis. Subsequently, contributions to journals can serve as a source of inspiration in one's own analysis of case law.

II. Finding Cases in Online Databases
Nowadays, online databases exist for almost all international courts. Most of these databases enable machine-readable research and parsing of case law. This allows students to filter case law by terms, topics, rules, and years to find the most relevant cases as quickly as possible. For this reason, online databases should usually be the starting point for case law research. Students may use the court's own databases for citations and footnotes as they provide scanned, but original versions of decisions. In this way, students can avoid mistakes in quoting and citing. In contrast, third-party databases are better suited for initial research. These databases often contain more precise options for filtering, so students can use them to find more appropriate cases more quickly. The following list provides an overview of online databases for international courts, tribunals, commissions, and committees:

 * Databases covering more than one court or system
 * WorldCourts (open access)
 * World Legal Information Institute (open access)
 * JusMundi (paid, but free for Jessup participants)
 * The Max Planck Encyclopedias of International Law (paid, but free for Jessup participants) with comprehensive summaries of many cases
 * World Court Digest (open access) with a thematic table of contents
 * Permanent Court of International Justice: Series A for judgments until 1930, Series B for Advisory Opinions until 1930, and Series A/B for Judgments, Orders and Advisory Opinions from 1931 (open access)
 * International Court of Justice: List of All Cases database (open access)
 * International criminal courts: ICC Legal Tools Database
 * International human rights adjudicative bodies
 * University of Minnesota, Human Rights Library (open access) for almost all international human rights adjudicative bodies
 * UN human rights system
 * UN Treaty Body Database (open access)
 * OHCHR Jurisprudence Database (open access) for United Nations Treaty Bodies
 * UN Human Rights Bodies Database (open access)
 * ECtHR’s HUDOC database (open access) for the European human rights system
 * Inter-American human rights system
 * IACmHR’s Reports on Cases (open access)
 * Judgements of the IACtHR database (open access)
 * Loyola of Los Angeles International and Comparative Law Review’s Inter-American Court of Human Rights Project database (open access)
 * IUSLAT Database on the Inter-American human rights system (open access)
 * SUMMA database on the Inter-American human rights system (open access)
 * African human rights system
 * Cases of the African Court on Human and Peoples’ Rights (open access)
 * Communications of the African Commission on Human and Peoples’ Rights (open access)
 * Database and commentary on jurisprudence of the African Court on Human and Peoples' Rights (open access)
 * African Human Rights Case Law Analyser (open access)
 * Other fields of international law
 * International Commercial Law: Case Law on UNCITRAL Texts database (open access)
 * International Centre for Settlement of Investment Disputes: ICSID database (open access)
 * International trade dispute settlement bodies: | WTO Dispute Documents database (open access)
 * International Tribunal for the Law of the Sea: ITLOS Document Search (open access)
 * Intellectual Property Law: WIPO Lex (open access)

To use these databases most effectively, students may think of key phrases that describe the problem to be solved as concretely and as briefly as possible. In some cases, the relevant phrases already emerge from the questions. For instance, our first example asks about the legality of entry restrictions under international law. A student could search the databases for the keywords "entry restrictions" and synonyms. However, this is usually not sufficient to find all cases that are relevant to solving the problem. Instead, students may also search for secondary literature in parallel. In particular, students can use Google, Google Scholar, encyclopedias of international law, the search engines of the major international law publishers (esp. CUP and OUP), and international law blogs for the keywords. After reading suitable articles in journals, books, blogs, and encyclopedias, students should have a deeper understanding of the legal issues. The keywords for the databases can then be adjusted.

This literature review is also particularly important if the question does not contain specific phrases that can already be used as keywords for databases. For instance, our second example asks solely about the lack of state responsibility of Serbia and Montenegro. It would be very tedious to search the databases for "state responsibility," as the keywords are still too general. Instead, students may first read the relevant case (Bosnian Genocide Case) and literature to be able to identify the key legal issues. After reading the case and literature, students can recognize that, among other issues, the question of attribution of private acts is crucial for the state responsibility of Serbia and Montenegro. For this issue, the ICJ has been using the "effective control" test since Nicaragua, whereas the International Criminal Tribunal for the former Yugoslavia (ICTY) uses the "overall control" test. These two phrases (“effective control” v. “overall control”) can be used as keywords for the literature review and databases to locate cases relevant to answer the question.

Some databases also offer to search cases by year, topic, and rule. This is particularly helpful in areas of law with many decisions to filter out the relevant cases. However, as international adjudicative bodies also draw inspiration from decisions outside their own system, students should not only search for cases in the field of law of the question but also look for comparable problems and decisions in other fields of international law. Students may repeat their research several times during the processing period using adjusted keywords to reflect their increased knowledge.

D. Using Cases in International Law
In order to apply the cases found, students should understand the case in a first step and then determine the relevance of the case for their assignment and argument in a second step.

I. Understanding Cases
After finding the relevant cases, students must understand these cases. The tools used to understand cases do not differ, but the way the tools are used does, depending on the role and objective. Every case analysis starts with reading the case as well as annotating and summarizing it (at least in thought). However, the reading, as well as the objects of markings and summaries, differ depending on the position and task of the analyzing student.

In international law, two distinct types of tasks exist in which the analysis of cases becomes relevant. In one case, students must analyze cases strictly doctrinally. This is particularly the case in moot courts and when students have to write a case brief or solve a case from the standpoint of the judge. In this type of task, the focus of analysis should be on locating the cases in the broader context of the relevant field of international law. Students can criticize decisions, provided that the judgments depart from the established canon of the field. In most instances, however, students should instead focus on distinguishing cases or establishing exceptions and qualifications of rules derived from judgments. In the other case, students can analyze cases not only doctrinally but also disruptively. This is particularly the case when students analyze cases not as (imaginary) members of an institution (be it as applicant/respondent or as a judge) but as external observers (e.g., in a critical case analysis). In this task, students should also locate the case in the broader context of the relevant field of international law. However, the primary analysis does not end there. Instead, students can analyze the case in light of decisions from other fields of international law, critical methodological approaches (e.g., Third World Approaches to International Law ), or interdisciplinary insights. Nonetheless, students should be aware that these two types of tasks represent two extreme positions of case analyses. In between, there is a continuum of tasks that combine elements from both types.

Regardless of the type of assignment, any case analysis begins with understanding the cases provided or identified. In this respect, a two-tiered approach can significantly facilitate the understanding of cases: Students may first read and annotate the case and secondly summarize it. However, there is no universal approach to reading and summarizing a case, so students can compile their own method based on existing approaches.

1. Reading and Annotating a Case
Before reading the case for the first time, students may make sure that they have understood the assignment as the type of task is crucial for the approach of case analyses. In a second step, students can use the techniques of "skimming” and "scanning" to obtain a first overview of the case. Skimming provides students with a first glimpse of the overarching content of the judgment. Students should not read the entire judgment or entire paragraphs but instead focus on the title and date of the decision, the parties, subheadings, and the first and last sentences of sections. Scanning is used to locate relevant passages within the judgment and then read it. For this purpose, students can be guided by subheadings as well as first and last sentences of sections from skimming and then read only those passages that seem relevant to answering the task. For example, if students are only interested in the legal reasoning, they may bypass all the parts of the judgment describing the facts and the proceedings to focus on the legal reasoning. In a third step, students may read and annotate the case. Annotations are used to visually structure the case and to be able to understand it with little effort even in retrospect.

In the final step of reading and annotating, students may consider rereading the case to review one's annotations and prevent mistakes or oversights. Depending on the assignment, it might be useful to read not only the case itself but also case summaries. Many courts provide these summaries themselves. But also journals or encyclopedias of international law contain case summaries. By supplementing one's own thoughts with thoughts from other lawyers, one's own idea of the case can be verified.

2. Summarizing a Case
After several readings of the case, the case can be summarized at least in thoughts, and for some assignments, in writing. As a rule, this step is not relevant for examiners, but for students. The case summary should comprehensively, but briefly, present the most important aspects of the case. Only by this step can students verify whether they have really understood the case. In addition, it serves to recall the case later without much effort. Thus, the case summary, in addition to the case reading, is a key prerequisite for using cases in international law.

II. Determining the Relevance of a Case
Before students ultimately apply the case, they should determine the relevance of the case for their assignment. The importance of cases for the international legal order was already explained at the beginning of this chapter. Although there is no formal doctrine of precedent in international law, cases shape both the determination of rules and their interpretation. However, this does not imply that judgments which at first glance support one's own argumentation should be used for one's own reasoning without hesitation. Likewise, cases that contradict one's own argumentation at first glance are not a final farewell to one's own reasoning. Instead, cases can be evaluated from both doctrinal and critical perspectives before they are finally presented. The appropriate balance between doctrinal and critical evaluation perspectives depends on the assignment at hand and cannot be determined in the abstract.

1. Approaching Cases Doctrinally
From a doctrinal perspective, there are three elements in particular to consider when students want to determine the relevance of the case to their assignment and argument: First, the applicability of the case to the assignment must be determined. In addition, obiter dicta and individual opinions may be considered.

a) Distinguishing Cases
Before classifying a case as being for or against their reasoning, students may answer two questions: Firstly, students can investigate whether the facts of the case under investigation correspond to the facts of the assignment (so-called factual distinguishing). It may well be that the result and reasoning of a case are clearly against one's own argument, but the cases are so different that the rule and reasoning cannot be transferred automatically. For this, students must closely examine the facts of the case and the assignment and identify similarities that allow the rule to be applied or differences that hinder the rule’s application. Second, the legal elaborations in the case may contain hidden qualifications or exceptions that preclude the application of a case that appears to fit or that justify the application of a case that does not appear to fit the assignment (so-called legal distinguishing). Finally, reasoning in old cases can also be displaced by new legal developments. For a persuasive argument, students should always acknowledge the cursory fit or lack of it in a first step, and then explain why the case actually does or does not fit in a second step. From a doctrinal perspective, it is usually unconvincing to frame a case as false. Instead, these two techniques of factual and legal distinguishing should be employed to exploit the case for one's own argument.

b) Obiter Dicta
Legal interpretations of courts that are not relevant for deciding the case (so-called obiter dicta) may also be considered in analyzing cases. For example, the ICJ defined opinio juris in an obiter dictum in North Sea Continental Shelf and defined obligations erga omnes for the first time in an obiter dictum in Barcelona Traction. In both instances, the legal reasoning was not relevant to the outcome of the case, and yet both obiter dicta continue to shape the international legal order to this day. However, it is disputed whether obiter dicta are "judicial decisions" or "teachings of publicists" in the sense of Art. 38(1)(d) Statute of the ICJ. For this reason, obiter dicta should be treated cautiously. For example, ITLOS in Delimitation of the Maritime Boundary in the Bay of Bengal refused to apply an obiter dictum of the ICJ in Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea.

c) Individual Opinions
Many domestic legal systems allow judges to attach individual opinions to the majority decision if they disagree with the majority’s reasoning (so-called concurring opinion) or result (so-called dissenting opinion). Likewise, almost all international adjudicative bodies permit judges to publish individual opinions.

Although individual opinions have not prevailed within the adjudicative body and are thus not enforceable, they can contribute to the development of legal standards. Individual opinions can assist in interpreting the majority opinion. Concurring opinions often clarify or generalize the court's reasoning. This facilitates the application of the court's reasoning to similar cases. Dissenting opinions not only reveal the rationale for the majority opinion but also criticize this majority opinion. Thereby, dissenting opinions are a good starting point for a critical engagement with majority opinions.

While the relevance of individual opinions should therefore not be underestimated, they should be treated cautiously. Firstly, they are just not part of the majority opinion and thus neither binding for the parties nor enforceable nor “subsidiary means for the determination of rules of law” according to Article 38(1)(d) Statute of the ICJ. Second, individual opinions are frequently results of national or amicable biases.

2. Approaching Cases Critically
From a critical perspective, it is much more difficult to recommend generally accepted approaches. However, one common feature of many critical approaches is to view cases as social facts rather than legal ones. Critical perspectives are therefore not limited to the application of doctrinal standards. Instead, critical approaches address, among other aspects, the sociological conditions of human decision-making in adjudicative bodies, (post-)colonial imprints and effects of decisions, economic conditionalities of law, and ecological consequences of judgments. While the application of these perspectives requires an engagement with their basic methodological assumptions, they usually enrich a case law analysis enormously by unmasking the supposed neutrality of doctrinal methods. Examples of critical engagement with cases include the 'feminist judgment movement', 'trashing' in the sense of critical legal studies, and 'Reading Back, Reading Black'. In the following chapters, this textbook provides insights into how to employ interdisciplinary, (post-)colonial, feminist, and Marxist approaches to case law analyses.

E. Conclusion
Cases are one of the four main sources to determine rules of international law. Despite this particular relevance, the ability of students to locate, understand, and apply cases in exams is often assumed. Many textbooks of international law do not teach case analysis skills, but only knowledge of the law. This chapter has attempted to provide students with an introduction to case analyses. (Un-)fortunately, it is up to these students, along with their teachers and practitioners of international law, to ensure that case analyses in the future no longer only consider decisions from colonising legal systems. This will require a challenging but also rewarding engagement with foreign legal systems, possibly including the learning of new languages (for this, Anglophone readers may feel particularly encouraged), and the critical questioning of traditional citation practices and case analysis techniques. While this process is time-intensive, it will not only promise novel insights but also serves to counteract the exclusion of the majority of states from the process of creating and developing international law, thereby contributing to fulfilling international law's universalist potential.

Conclusion

 * Cases are one of the four main sources to determine rules of international law. Finding and analyzing cases is therefore one of the main tasks of international lawyers.
 * The most obvious, but also the most challenging source for researching case law is printed law reports. Nowadays, online databases exist for almost all international courts. Most of these databases enable machine-readable research and parsing of case law. This allows students to filter case law by terms, topics, rules, and years to find the most relevant cases as quickly as possible. For this reason, online databases should usually be the starting point for case law research.
 * In order to apply the cases found, students should understand the case in a first step and then determine the relevance of the case for their assignment and argument in a second step.
 * Before students ultimately apply the case, they should determine the relevance of the case for their assignment. Although there is no formal doctrine of precedent in international law, cases shape both the determination of rules and their interpretation.
 * From a doctrinal perspective, there are three elements in particular to consider when students want to determine the relevance of the case to their assignment and argument: First, the applicability of the case to the assignment must be determined. In addition, obiter dicta and individual opinions must be considered.
 * From a critical perspective, it is much more difficult to recommend generally accepted approaches. However, one common feature of many critical approaches is to view cases as social facts rather than legal ones.

Further Readings

 * Acquaviva G and Pocar F, "Stare decisis", in Anne Peters (ed), The Max Planck Encyclopedias of International Law (Oxford University Press 2021)
 * Andenas M and Leiss JR, ‘The Systemic Relevance of “Judicial Decisions” in Article 38 of the ICJ Statute’ (2017) 77 ZaöRV 907
 * Bjørge E and Miles CA (eds), Landmark Cases in Public International Law (Hart Publishing 2017)
 * Linos K, ‘How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics’ (2015) 109 American Journal of International Law 475
 * Roberts A, Is International Law International? (Oxford University Press 2017)
 * Shahabuddeen M, Precedent in the World Court (Cambridge University Press 1996)

Further Resources

 * Columbia University, Researching Public International Law
 * UC Hastings Law, International Law Research Guide: Analysis of International Law
 * NYU Law, International Law: General Sources: General tools for finding cases on international law
 * The University of Melbourne, Finding International Cases