The revival of comparative international law.

Author:Malksoo, Lauri
Position:Proceedings of the 2015 Annual Meeting of the American Society of International Law: Adapting to a Rapidly Changing World
 
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This panel was convened at 1:00 p.m., Thursday, April 9, by its moderator William W. Burke-White of the University of Pennsylvania Law School, who introduced the panelists: Congyan Cai of Xiamen University School of Law; James Gathii of Loyola University Chicago School of Law; Neha Jain of the University of Minnesota Law School; and Lauri Malksoo of the University of Tartu (Estonia).

Comparative International Law: Lessons Learned from Russia

By Lauri Malksoo ([dagger])

Comparative international law (CIL) is an especially important area of the law when differences in interpreting and applying international law are obvious and not marginal; particularly when there is a clear ideological and perhaps also cultural component to different understandings of international law. In these moments, it is necessary that nations viewed as "others" when it comes to interpretations of international law be considered powerful enough that their perspectives are worth studying. There was not much CIL in the nineteenth century because at that time, Europe was powerful enough that it could afford to dismiss the major differences it perceived in the rest of the world as not relevant for international law, which it considered exclusively as its own realm. For ages, international law has not just been a language of justice but also, and perhaps more so, power--something that we international lawyers sometimes tend to underestimate.

It is in this sense that one can currently see a revival of CIL. The world is much less homogenous and much more conflicts-ridden than was presumed and hoped in the immediate post-Cold War era. At the same time, there is a sense in the west that the world is changing rapidly and that the position of the west in the world order is decreasing economically, demographically, and generally power-wise. This, among other reasons, also triggers the curiosity: what do "others" actually think and do, inter alia, in the normative context of international law? When speaking of CIL, I am referring to the study of the reality of international law--both at the level of scholarly doctrine and state practice-- in different countries and power centers in the world.

Russia has been an important country, perhaps the most important country, in the history of CIL in the twentieth century. In a certain sense, the beginning of CIL as an intellectual project goes back to when the Bolsheviks came to power in Russia in 1917 and developed their own theory and...

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