In 1908 the second volume of the American Journal of International Law featured a piece by Lassa Oppenheim entitled The Science of International Law: Its Tasks and Method. Oppenheim began his article by noting, apparently with some approval, that the first volume of AJIL, stacked with articles only by Americans, had “shown to the world that America is able to foster the science of international law without being dependent upon the assistance of foreign contributors.” Concerned, however, that students were “at first frequently quite helpless for want of method [and] mostly plunge into their work without a proper knowledge of the task of our science, without knowing how to make use of the assertions of authorities, and without the proper views for the valuation and appreciation of the material at hand,” Oppenheim sought to bring “the task and the method of this our science into discussion in this Journal.” What followed was a comprehensive exposition of his views on the purposes of international law and the methods available to lawyers and scholars for approaching the problems they face.

When we were invited to contribute a positivist perspective to the present symposium, we did not know whether to regard this invitation as flattering or as an insult: does positivism not represent old-fashioned, conservative, continental European nineteenthcentury views—naive ideas of dead white males on the possibility of objectivity in law and morals? There is little we can do about being male and white, but we have certainly not seen ourselves as positivists of that kind. From the range of methodologies that the editors assembled, we could associate ourselves with several approaches just as much as with positivism. But in reflecting on our day-to-day legal work, we realized that, for better or for worse, we indeed employ the tools developed by the “positivist” tradition.

Real problems, like the problem posed, are not amenable to simple solutions. Human rights abuses in internal conflicts usually have roots deep in history and the collective psyche of the individuals and groups involved. To prevent them, the certain prospect of a swift punitive reaction on the international plane might have a useful deterrent effect. But if a violent conflict or genocide is in progress, the expectation of punishment may not by itself be likely to end the conflict. Ironically, it may prolong the plight of the persecuted, since persecutors may conclude that they have no alternative but to fight to the bitter end to avoid the consequences of their misdeeds. To deal with major incidents of unauthorized coercion and violence, an amnesty for the violators might contribute to a lessening of the toll in blood of a particular ethnic or religious rage. But that, again, might be an incomplete reaction, since the victims of the atrocities committed will not find solace, satisfaction or rehabilitation. Nor will persons who may be pathologically violent be removed from circulation. Where society remains unreconciled, jarred, conflicted—in a state of continual animosity between warring families, clans or ethnic, religious or social groups—“cold” war might heat up and erupt at any time in the future even more violently than before. Thus, truth commissions have been established in various contexts at least to shine the light of searching inquiry on situations in which truth has always been the first casualty. Still, such agencies alone might not suffice to bring about social reconciliation and restoration. Neither might bodies set up to mete out justice in the form of civil compensation. International criminal courts may send a message to people elsewhere contemplating massive violations, but they may do nothing to reconstruct the civil society that has been disrupted.

International legal process (ILP) emphasizes understanding how international law works. It concentrates not so much on the exposition of rules and their content as on how international legal rules are actually used by the makers of foreign policy. It is a more limited methodology than some others discussed in the symposium in that it did not, as originally developed, expose the normative values of the methodology, or how the methodology could be used to achieve those values. Nevertheless, ILP, as a study of international law in its actual operation and the consideration of how international law could work better, has had a significant influence on American international law scholarship.

As I started to think about how to respond to your kind invitation to participate in the symposium on method in international law, and what to write to the readers of the Journal, I soon noticed that it was impossible for me to think about my—or indeed anybody’s—“method” in the way suggested by the symposium format. This was only in part because I felt that your (and sometimes others’) classification of my work as representative of something called “critical legal studies” failed to make sense of large chunks of it whose labeling as “CLS” might seem an insult to those in the American legal academy who had organized themselves in the 1970s and early 1980s under that banner. You may, of course, have asked me to write about “CLS” in international law irrespectively of whether I was a true representative of its method (whatever that method might be). Perhaps I was only asked to explain how people generally identified as “critics” went about writing as they did. But I felt wholly unqualified to undertake such a task. Dozens of academic studies had been published on the structure, history and ideology of critical legal studies in the United States and elsewhere. Although that material is interesting, and often of high academic quality, little of it describes the work of people in our field sometimes associated with critical legal studies—but more commonly classed under the label of “new approaches to international law.“1 In fact, new writing in the field was so heterogeneous, self-reflective and sometimes outright ironic that the conventions of academic analysis about “method” would inevitably fail to articulate its reality.

Over the last ten years, international relations (IR) theory, a branch of political science, has animated some of the most exciting scholarship in international law.1 If a true joint discipline has not yet emerged,2 scholars in both fields have clearly established the value of interdisciplinary cross-fertilization. Yet IR—like international law—comprises several distinct theoretical approaches or “methods.” While this complexity makes interactions between the disciplines especially rich, it also makes them difficult to explore concisely. This essay thus constitutes something of a minisymposium in itself: it summarizes the four principal schools of IR theory—conventionally identified as “realist,” “institutionalist,” “liberal” and “constructivist”—and then applies them to the norms and institutions governing serious violations of human dignity during internal conflicts (the “atrocities regime”).

I have mixed feelings about participating in this symposium as the feminist voice. On the one hand, I want to support the symposium editors’ attempt to broaden the standard categories of international legal methodologies by including feminism in this undertaking. On the other hand, I am conscious of the limits of my analysis and its unrepresentativeness—the particularity of my nationality, race, class, sexuality, education and profession shapes my outlook and ideas on international law. I clearly cannot speak for all women participants in and observers of the international legal system. I also hope that one day I will stop being positioned always as a feminist and will qualify as a fully fledged international lawyer. My reservations are also more general because presenting feminism as one of seven rival methodological traditions may give a false sense of its nature. The symposium editors’ memorandum to the participants encouraged a certain competitiveness: we were asked, “Why is your method better than others?” I cannot answer this question. I do not see feminist methods as ready alternatives to any of the other methods represented in this symposium. Feminist methods emphasize conversations and dialogue rather than the production of a single, triumphant truth.1 They will not lead to neat “legal” answers because they are challenging the very categories of “law” and “nonlaw.” Feminist methods seek to expose and question the limited bases of international law’s claim to objectivity and impartiality and insist on the importance of gender relations as a category of analysis. The term “gender” here refers to the social construction of differences between women and men and ideas of “femininity” and “masculinity”—the excess cultural baggage associated with biological sex.

The problem of criminal responsibility for human rights atrocities committed in internal conflict provides an appropriate vehicle for examining various theoretical and methodological approaches to international law. The issues raised include the following: Does international law provide for individual criminal responsibility for such acts? How best can these atrocities be prevented? Should international law address these matters or are they better left to domestic law? Why does international legal doctrine distinguish between human rights violations committed in international conflict and the identical acts committed in internal conflict?

We structured this symposium on the premise that comparison reveals critical differences. We asked our authors, as noted in the introduction, to describe their methodology, apply it to the concrete problem of accountability for atrocities in internal conflict, and discuss its merits and demerits relative to other approaches presented in the symposium. We threw out these questions as a means of structuring a debate in a way that would be most helpful to our readers and that would encourage our authors to engage with each other as self-consciously as possible. We did not seek competition as an end in itself, but as a spur to self-reflection.

The 1994 Uruguay Round revision of the dispute settlement mechanism under the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) has made it a forum both for traditional trade issues and for interests ranging from environmental protection to national security. The limits of GATT jurisdiction have become important issues of dispute settlement within the WTO, especially as the emergence of the WTO and its rule-based, quasi-obligatory dispute settlement system has spurred a significant shift toward legalism. Constitutional structures are developing much faster in international trade law than in any other area of international law and, in the aftermath of the Uruguay Round, are integrating ever more aspects of economic relations among states. Within the WTO regime the dispute settlement mechanism established by the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) plays a prominent role in enforcing its rules and reconciling a wide array of the members’ interests. The limits of the reach of the dispute settlement mechanism, given its obligatory character, are, to a certain degree, the limits of the constitutionalization of the organization as a whole.

Fisheries Jurisdiction (Spain v. Canada), Jurisdiction.

International Court of Justice, December 4, 1998.

On May 10, 1994, Canada filed an amended declaration accepting the jurisdiction of the International Court of Justice (ICJ). New paragraph 2(d) excluded “disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in die NAFO Regulatory Area, as defined in the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures.” Two days later, the Canadian Coastal Fisheries Protection Act (CFPA) and implementing regulations were amended to authorize the enforcement under certain circumstances of conservation measures applicable to foreign fishing vessels in the high seas areas to which the reservation adverted.

United States—Import Prohibition of Certain Shrimp and Shrimp Products.

World Trade Organization, Appellate Body, October 12, 1998.

In May 1996, the United States effectively prohibited imports of shrimp and shrimp products from all countries that do not require commercial shrimp trawlers to use turtle-excluder devices (TEDs) to permit endangered species of sea turtles to escape from trawling nets to avoid drowning. In January 1997, India, Malaysia, Pakistan and Thailand requested that the WTO Dispute Settlement Body establish a panel to determine whether this import ban, among other things, violates the prohibition on quantitative restrictions in Article XI of GATT (1994). The United States maintained that its import ban was permitted under the exceptions set forth in paragraphs (b) and (g) of GATT Article XX. Four turtle species that migrate in and out of waters subject to the complaining parties’ jurisdiction are listed as endangered under the Convention on International Trade in Endangered Species of Wild Fauna and Flora and are covered by the relevant U.S. regulation.

Prosecutor v. Delalic. No. IT-96-21-T.

International Criminal Tribunal for the former Yugoslavia, Nov. 16, 1998.

On November 16,1998, a trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) issued its judgment in the Čelebići case against four defendants. The chamber found the de facto commander of the Čelebići prison camp liable under the principle of command responsibility for various acts of torture and illtreatment at the camp. It also found two other accused guilty of grave breaches of the Geneva Conventions and violations of the laws or customs of war for their actions at the camp. A fourth accused, indicted only under the principle of command responsibility, was found not guilty on all counts owing to the lack of a superior-subordinate relationship. Those accused convicted of multiple offenses were ordered to serve their sentences concurrently.

Re Reference by Governor in Council Concerning Certain Questions Relating to Secession of Quebec from Canada.

Supreme Court of Canada, August 20, 1998.

In an attempt to clarify the legal context in which continuing Canadian constitutional conundrums arise, the federal executive referred three questions to the Supreme Court of Canada regarding the legality under both Canadian constitutional law and international law of a potential unilateral declaration of independence by the Province of Quebec. The Court declared that unilateral secession is not permitted under either Canadian constitutional law or international law. The “underlying principles that animate” the Canadian Constitution preclude secession, even though there is no specific text prohibiting the dismantling of the Canadian state. However, if Quebecers were to vote yes to secession by “a clear majority on a clear question,” democratic legitimacy would be conferred on the secessionist project and a constitutional obligation to negotiate would arise binding the other provinces and the federal authority.