International lawyers are more familiar with rule-based international law, which mainly functions as adjudicative norms. They debate whether a specific state act violates international law or not. Their main job is to find an appropriate rule suitable for a specific case and apply it. Most textbooks on international law composed of judicial cases by international and domestic courts follow this approach. This traditional approach to international law, which is also a eurocentric and positivistic approach to international law, still dominates current discussions of international law. On the other hand, new approaches to international law began to emerge after WWII. These new approaches include, in particular, the re-emergence of natural law doctrine, the Third World approach to international law, policy-oriented approach and constitutional approach to international law.
The author of International Law in a Transcivilizational World, Yasmak Oguma, criticizes the traditional approach. His approach to international law is somewhat close to a policy-oriented one, in that he understands international law as a process rather than mere adjudicative norms. First of all, international law, according to him, plays a significant role as a justificatory, legitimating and communicative tool rather than as adjudicative norms (p. 8). He also stresses the importance of international law as a problem-solving system. This approach has been adopted by some scholars. For example, Rosalyn Higgins, former president of the International Court of Justice, has stated that “[t]he role of international law is to provide an operational system for securing values” such as security and freedom, understanding international law as a normative system, not rules.Footnote 1 She also defines international law as a continuing process of authoritative decisions.Footnote 2
Second, the author takes a transcivilizational approach to international law in dealing with various international law topics. The transcivilizational perspective is “a perspective from which people see, sense, (re)cognize, interpret, assess, and seek to propose solutions for the ideas, activities, phenomena and problems transcending national boundaries by adopting a cognitive and evaluative framework based on the recognition of the plurality of civilizations and cultures that have long existed throughout human history” (p. 19). His approach is aimed at explaining global affairs in terms of civilization, reflecting power relations from West-centric to non-West-centric reality in the twenty-first century.
Oguma's approach reflects his critical understanding of current international law. According to him, the current discourse in international law is West-centric and domestic model-oriented. First, he points out that the gap “between Asia-centric material power and West-centric ideational power may become a serious disturbing factor to the international legal order” (p. 5). The author notes that with the greater role anticipated by non-Western countries in the twenty-first century, “[t]he discrepancy between the actual power constellation of powerful non-Western nations and the predominant West-centric cognitive and evaluative framework is dangerous” (p. 53). Second, he notes that most international lawyers are more focused on interpreting existing international norms and understanding international law as adjudicative norms. In other words, cultural and historical approaches are rarely adopted into the practice of international law. He criticizes this judicial-centric approach as simply pragmatic with no regard to history (p. 22).
Oguma's approach to international law is functional, which aims “to analyze, elucidate and interpret legal norms and mechanisms of international law that actually function in international and domestic societies” (p. 23). For him, the primary role of international law is “prescribing the conduct of states as the authoritative common code of conduct between states” (p. 27). One of the merits that his understanding of international law brings forth is that it could provide “ideational and institutional frameworks for the coexistence of and cooperation between states, which will ultimately serve the survival and well-being of humanity” by preventing, rather than settling, international conflicts (p. 534). His “realistic” perspective is aimed at uncovering unjust normative realities and proposing alternative options for a better world.
Chapters 1 to 4, in particular, attracted my interest, where the author's unique approach to international law was well established and explained. First, he takes a quite unique approach to the source of international law. For him, the cognitive value of international law is more important than whether treaties or customs are sources of international law or not. According to him, international law should be understood as prescriptive norms actually functioning in various forums. He criticizes the source-based approach to international law, in which treaties and customs are recognized as main sources of international law (p. 106). He argues that treaties, custom and UN resolutions all have the same characters as “cognitive bases, not norms, of international law.” For him, ILC (International Law Commission) draft articles may have different meaning. For example, he says that the 2001 Draft Articles on Responsibility of States may “provide the most reliable cognitive basis” (p. 255). This approach is closely related to understanding international law as a prescriptive norm rather than adjudicative norm (p. 107). In the book, many ILC drafts articles are quoted and cited as having more substantial authority than their formal status.
Second, Oguma brings up the issue of state responsibility, as covered in Chapter 4, titled “Responses to Violations of International Law”. As he points out, the international judiciary is just one of many mechanisms in which the problem of violations of international law and responses to such violations is addressed (p. 252). Violations of international law are mostly addressed in non-judicial forums and in a non-judicial manner (p. 259). The legality or illegality of an act of a state is evaluated in a comprehensive manner with various participants of international law contributing to it in diverse forums (p. 290). The international legal process is achieved through multi-layered judgments of diverse actors of international law (p. 291). While many international law scholars understand state responsibility through judicial mechanism, his analysis helps us understand the dynamic of pursuing international responsibility of states.
This book is divided into eleven chapters that examine subjects that include International Law in a Multi-civilizational World (Chapter 1); Subjects and Participants of International Law (Chapter 3); Responses to Violations of International Law (Chapter 4); The Global Economy and International Law (Chapter 7); The Global Environment and International Law (Chapter 8); and Conflict Resolution (and Dispute Settlement) and International Law (Chapter 9).
Viewing international law as a process from a historical and multi-civilizational approach inevitably may result in weakening the normativity of the existing international norms. According to the author, “[I]international law can be wicked, supporting an undesirable status quo in international society, where the powerful often suppress and discriminate against the weak” (p. vii). He admits international law may also be unjust in its content and function (p. 25). His approach can be another form of international law based on the power structure not of Europe but of Asia. Also, it was somewhat difficult for me to fully accept his argument because it gives rise to the question of whether a wicked and unjust law is really law.
Reading the book, as a whole, I felt quite significantly the need to let my students know that there are various approaches to understanding international order. Also, the good thing about this book was that I was able to comprehend the backgrounds of norms and institutions in international law in terms of historical and multi-cultural perspectives. I am sure that this book could definitely help international law scholars and students broaden their understanding of international law.
