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Reflections On The Value Of Socio-Legal Approaches To International Economic Law In Africa, Olabisi D. Akinkugbe
Reflections On The Value Of Socio-Legal Approaches To International Economic Law In Africa, Olabisi D. Akinkugbe
Chicago Journal of International Law
In their Lead Essay for the 2021 Chicago Journal of International Law Symposium, Daniel Abebe, Adam Chilton, and Tom Ginsburg offer an account of “the rise of the social science approach to international law, explain the basics of the method, and advocate for its continued adoption.” This Essay critically assesses how and why one might use socio-legally inspired methods (analytical, empirical, and normative) for the study of international economic law (IEL) in Africa. It illustrates the empirical method’s importance in understanding one of the most challenging aspects of the study of IEL in Africa: capturing the data and dynamism of …
On Relating Social Sciences To International Law: Three Perspectives, Yifeng Chen
On Relating Social Sciences To International Law: Three Perspectives, Yifeng Chen
Chicago Journal of International Law
This Essay offers a critical yet constructive reading of the social science approach to international law. In seeking to frame international legal studies alongside the positivistic social sciences, the social science approach has suffered from important methodological deficiencies. Though appearing to be an objective science, the social science approach requires a scholar to make subjective decisions throughout the research process. A reductionistic social science approach to international law risks consolidating existing inequalities and imperialistic institutions in the name of objective science. A healthy interaction between international law and the social sciences requires enriched conceptions of both international law and the …
Herding Schrödinger’S Cats: The Limits Of The Social Science Approach To International Law, Simon Chesterman
Herding Schrödinger’S Cats: The Limits Of The Social Science Approach To International Law, Simon Chesterman
Chicago Journal of International Law
The struggle to assert the legitimacy and relevance of international law is integral to its story. Among academics, that tale has seen other lawyers question whether it is “really” law, while scholars of international relations have dismissed it in a bemused footnote. Among politicians, the narrative has been one of efforts to establish international law as more than simply one foreign policy justification among others. The turn to social science offers a double remedy: rigorous methods that will earn the respect of the academy while also demonstrating the discipline’s “real world” impact. This is an elegant answer—to the wrong question. …
China And Comparative International Law: Between Social Science And Critique, Matthew S. Erie
China And Comparative International Law: Between Social Science And Critique, Matthew S. Erie
Chicago Journal of International Law
This Essay brings Abebe, Chilton, and Ginsburg’s Lead Essay into conversation with the literature on comparative international law to ask whether the social scientific approach to international law is “international.” In particular, this Essay takes the case of scholarship on international law in China to examine why or why not particular methodological and theoretical perspectives on international law may gain traction in certain jurisdictions’ legal academies. There are a number of linguistic, pedagogic, institutional, and, ultimately, political reasons why the Chinese scholarship that uses social science to understand international law is still nascent. At the same time, critical approaches to …
The Limits Of International Law Fifteen Years Later, Jack L. Goldsmith, Eric A. Posner
The Limits Of International Law Fifteen Years Later, Jack L. Goldsmith, Eric A. Posner
Chicago Journal of International Law
The Limits of International Law received a great deal of criticism when it was published in 2005, but it has aged well. The skeptical, social-scientific methodology that it recommended has become a normal mode of international law scholarship. And the dominant idealistic view of international law that the book criticized is today in shambles, unable to explain the turmoil in international politics. This Essay reflects on the book’s reception and corrects common misperceptions of its arguments
Studying Race In International Law Scholarship Using A Social Science Approach, James Thuo Gathii
Studying Race In International Law Scholarship Using A Social Science Approach, James Thuo Gathii
Chicago Journal of International Law
This Essay takes up Abebe, Chilton, and Ginsburg’s invitation to use a social science approach to establish or ascertain some facts about international law scholarship in the United States. The specific research question that this Essay seeks to answer is to what extent scholarship has addressed international law’s historical and continuing complicity in producing racial inequality and hierarchy, including slavery, as well as the subjugation and domination of the peoples of the First Nations. To answer this question, this Essay uses the content published in the American Journal of International Law (AJIL) from when it was first published in 1907 …
A Matter Of Personal Choice, Bing Bing Jia
A Matter Of Personal Choice, Bing Bing Jia
Chicago Journal of International Law
This short Essay is a comment on the Lead Essay of the Symposium. It seeks to make two points from personal observation. First, an approach for study, research, and practice in international law depends on the purpose the work of an international lawyer seeks to serve. Second, in terms of methodology, the social science approach overlaps to some degree with other approaches. The proposition drawn from the two points is that an approach, being individualistic in nature, is a matter of personal choice, unsuitable for general consumption
Measuring The Art Of International Law, Mary Ellen O’Connell
Measuring The Art Of International Law, Mary Ellen O’Connell
Chicago Journal of International Law
Social science methodology is a useful adjunct to law, but it cannot replace the humanist ideas that constitute law. Scholars developed social science at the end of the nineteenth century and were soon using it to measure and assess material facts associated with far older intellectual disciplines like law. They have been able to confirm facts about such issues as the origins and impact of law. These studies rely, however, on a humanist definition of the object of the study. Humanist methods reveal that law is the result of transcendent concepts developed through natural law method. By the early twenty-first …
Comparative International Law And The Social Science Approach, Emilia Justyna Powell
Comparative International Law And The Social Science Approach, Emilia Justyna Powell
Chicago Journal of International Law
The social science approach has already contributed and continues to contribute to the study of international law. In particular, research that incorporates the social science approach has provided much insight into reality and day-to-day functioning of international law by going beyond historical and normative description and providing generalizable theories. If based on a sound theoretical framework that is subsequently tested in a rigorous scientific manner, the social science approach allows us to uncover a multiplicity of factors that commingle to shape states’ preferences and actions toward international law. Combining insights provided by analysis of large-N data with qualitative methodology allows …
Social Science Research And Reforms Of International Institutions, Weijia Rao
Social Science Research And Reforms Of International Institutions, Weijia Rao
Chicago Journal of International Law
Building on Daniel Abebe, Adam Chilton and Tom Ginsburg’s call for more social science research in international law, this Essay discusses ways in which social science research can be applied to inform reforms of international institutions. In the face of significant challenges to the current international legal order, active reform discussions have been ongoing concerning a number of international institutions. This Essay posits that in developing proposals to reform these international institutions, more attention should be paid to identify the causes of existing problems, which is important in an international setting where decision-making requires the consensus of multiple stakeholders. The …
International Law And Transnational Legal Orders: Permeating Boundaries And Extending Social Science Encounters, Gregory Shaffer, Terence C. Halliday
International Law And Transnational Legal Orders: Permeating Boundaries And Extending Social Science Encounters, Gregory Shaffer, Terence C. Halliday
Chicago Journal of International Law
This Essay elaborates in three ways the call for a renewal of social science approaches to international law advanced by Daniel Abebe, Adam Chilton, and Tom Ginsburg. First, while we affirm the importance of what they call the “scientific method” of hypothesis testing, we argue that it can and must be complemented by several other well-institutionalized social science approaches to international law. Second, we loosen the conventional “internal”/“external” distinction in legal scholarship and make the case that conceptualization and empirics are integral to both approaches. Third, we propose that the full promise of social science approaches to international law can …
Cured: Proposing A Solution To The Hague Convention’S “Zone Of Disease” Defense, Savannah Mora
Cured: Proposing A Solution To The Hague Convention’S “Zone Of Disease” Defense, Savannah Mora
Chicago Journal of International Law
Each year, thousands of children are taken from their homes to foreign countries by one of their parents (the “taking parent”) without the consent of their other parent (the “left-behind parent”). This phenomenon is frequently referred to as international child abduction. If both the country from which the child was taken and the country to which the child was taken are signatories to the Hague Convention, the left-behind parent can file a petition for return of the child under the treaty. Recently, in a number of courts around the world, taking parents facing Hague Convention litigation have argued that, because …
How Hackers Of Submarine Cables May Be Held Liable Under The Law Of The Sea, Jason Petty
How Hackers Of Submarine Cables May Be Held Liable Under The Law Of The Sea, Jason Petty
Chicago Journal of International Law
Submarine internet cables play a vital role in the modern economy and transmit almost all global internet connections between countries. These cables, however, are vulnerable to interference or hacking by foreign states who seek to obtain the valuable data that passes through them. Because these cables are located on the high seas, however, no country has legal jurisdiction over large portions of them allowing for any number of states or private actors to hack into them and steal valuable information. This Comment evaluates whether states have any legal recourse under public international law against entities that hack into submarine cables. …
Applying The United Nations Trafficking Protocol In The Context Of Climate Change, Mikaila V. Smith
Applying The United Nations Trafficking Protocol In The Context Of Climate Change, Mikaila V. Smith
Chicago Journal of International Law
Climate change will increasingly lead to widespread environmental degradation which will in turn spur large-scale vulnerability, displacement, and migration. This phenomenon is now well recognized in the literature, although causal pathways continue to be debated. However, scholars and practitioners have so far largely neglected to examine the related ways in which climate change will significantly impact the scale and scope of global trafficking in persons. This Comment responds to a lack of scholarship on the climate change-human trafficking nexus by exploring the predicted impacts of climate change on human trafficking. In light of these forecasted developments, this Comment argues that …
Linguistic Minorities With Disabilities And The Right To Native Language Instruction, Carol Zhang
Linguistic Minorities With Disabilities And The Right To Native Language Instruction, Carol Zhang
Chicago Journal of International Law
This Comment examines whether international law guarantees for linguistic minorities with disabilities the right to native language instruction. Linguistic minorities with disabilities currently face two challenges: the barriers presented by their disability and the difficulties of learning the majority language. A right to native language instruction would help eliminate this second challenge, removing an obstacle in academic and social development. To determine the existence of such a right, this Comment will first analyze the language rights regime and show that linguistic rights require further evaluation of the specific pragmatic interests involved. Next, this Comment looks at treaty and case law …
International Law After Dark: How Legalized Sex Work Can Comport With International And Human Rights Law, Joshua A. Fox
International Law After Dark: How Legalized Sex Work Can Comport With International And Human Rights Law, Joshua A. Fox
Chicago Journal of International Law
Prostitution is often criminalized, but it should not be. While it is undisputed that criminalization assists in shrinking the sexual service industry and decreasing the prevalence of sex trafficking, countervailing evidence suggests that legal and regulated sex work is far safer for all involved. Indeed, the international law on the subject, which calls for an end to exploitation, violence, and trafficking, does not outlaw sex work in all of its forms. This Comment argues that legal sex work, when regulated adequately, comports with international law and promotes the human rights of sex workers that are curbed when the practice is …
The Social Science Approach To International Law, Daniel Abebe, Adam Chilton, Tom Ginsburg
The Social Science Approach To International Law, Daniel Abebe, Adam Chilton, Tom Ginsburg
Chicago Journal of International Law
For over a hundred years, scholars have argued that international law should be studied using a “scientific” approach. Throughout the twentieth century, however, the most prominent methods used to study international law primarily consisted of different theoretical and analytical claims about how international law should be developed, interpreted, and critiqued. It is only in the first two decades of the twenty-first century that the conventional social science approach to research—identifying a specific question, developing hypotheses, using a research design to test those hypotheses based on some form of qualitative or quantitative data, and presenting conclusions, all while acknowledging the assumptions …
Remediation In Foreign Bribery Settlements: The Foundations Of A New Approach, Samuel J. Hickey
Remediation In Foreign Bribery Settlements: The Foundations Of A New Approach, Samuel J. Hickey
Chicago Journal of International Law
A handful of nations spearhead the global anti-corruption regime through the transnational enforcement of foreign bribery laws. These laws prohibit corporations with a connection to the enforcing nation from paying or offering bribes to the officials of a foreign nation. Enforcement agencies construe the extraterritorial application of these laws broadly, establishing their global prominence. The most notable example is the United States Department of Justice’s enforcement of the Foreign Corrupt Practices Act of 1977 (FCPA). Enforcement agencies typically resolve investigations against corporations through deferred prosecution agreements and other consensual settlement mechanisms known generally as non-trial resolutions. Fines and penalties paid …
Whole Issue (Winter 2021 / 21.2)
Whole Issue (Winter 2021 / 21.2)
Chicago Journal of International Law
No abstract provided.
Environment, Mobility, And International Law: A New Approach In The Americas, David J. Cantor
Environment, Mobility, And International Law: A New Approach In The Americas, David J. Cantor
Chicago Journal of International Law
The role of international law in regulating international movement in the context of global environment change and hazards remains a topic of intense debate among both legal scholars and practitioners. Yet, as this Article shows, we have largely reached the limits of what existing international law methods and approaches can tell us about the future of the law in this area. By contrast, this Article draws on a detailed regional case study to offer a distinct perspective to that ongoing debate about the role and future of international law. Against the backdrop of emerging patterns of mobility linked to devastating …
Table Of Contents
Chicago Journal of International Law
Table of Contents (Winter 2021 / 21.2)
The Legal Man In The Moon: Exploring Environmental Personhood For Celestial Bodies, William B. Altabef
The Legal Man In The Moon: Exploring Environmental Personhood For Celestial Bodies, William B. Altabef
Chicago Journal of International Law
The rise of the commercial space industry endangers the preservation of environments, such as the lunar surface and other celestial bodies, with the threat of contamination and resource exploitation. In the coming decades, flights to space will become commonplace—but at present, there is no way to hold outer space polluters accountable. The existing international legal regime is weak, with the United Nations’ space treaties offering limited enforcement mechanisms against offenders. The increasingly popular concept of environmental personhood offers a solution by rethinking the meaning of a juridical person within the text of the United Nations Outer Space, Space Liability, and …
The Application Of International Tax Treaties To Digital Services Taxes, Katherine E. Karnosh
The Application Of International Tax Treaties To Digital Services Taxes, Katherine E. Karnosh
Chicago Journal of International Law
As digital services and electronic commerce have become more prevalent aspects of the global economy, there have been concerns over how tax systems will adapt to this change. International tax treaties in particular seem to be outdated and unprepared for the digital economy. Many international tax treaties provide that businesses are to be taxed on their income only in jurisdictions where they have a sufficient physical presence. By establishing their European headquarters and digital servers in countries with low corporate income tax rates (such as Ireland) and then using those headquarters to provide digital services to the rest of Europe, …
Human Rights Disclosure And Due Diligence Laws: The Role Of Regulatory Oversight In Ensuring Corporate Accountability, Rachel Chambers, Anil Yilmaz Vastardis
Human Rights Disclosure And Due Diligence Laws: The Role Of Regulatory Oversight In Ensuring Corporate Accountability, Rachel Chambers, Anil Yilmaz Vastardis
Chicago Journal of International Law
The proliferation of human rights disclosure and due diligence laws around the globe is a welcome development in the area of business and human rights. Corresponding improvement in conditions for workers and communities in global supply chains whose human rights are impacted by businesses has not materialized, however. In this Article, we focus on the oversight and enforcement features of human rights disclosure and due diligence laws as one of the missing links to achieving the accountability objectives envisaged by such legislation. Drawing on our analysis of key legislative developments, we observe and critique that the state has almost completely …
A Transnational Law Of The Sea, Josh Martin
A Transnational Law Of The Sea, Josh Martin
Chicago Journal of International Law
It is widely accepted that we are presently struggling to govern the vast expanse of the ocean effectively. This Article finally gets to the real cause of much of the failures of the law of the sea: Westphalian sovereignty. In particular, it evidences that certain features of our obstinate model of public international law—such as sovereign exclusivity, equality, and territoriality—can be linked with a large majority of the governance “gaps” in the global ocean context. It thereby exonerates the falsely accused Grotius’s mare liberum doctrine and flag state regulation, which both still continue to receive an unmerited level of condemnation. …