Edited by Jorge L. Fabra-Zamora
Edited by Jorge L. Fabra-Zamora
Giulia Gentile and Luigi Lonardo
A method is a way to achieve a result, and it is neutral to that result. If the method is sound, it should not influence the outcome. It does not matter whether you use differential calculus or a proof by induction to prove a mathematical proposition: the result should be always the same. One might provocatively say that this is not true for all disciplines. In some cases, the methodology of research dictates or influences the result. This trivial finding is one of the main contributions of approaches such as postmodern epistemologies, critical legal studies or constructivism. A researcher might dismiss these disciplines in which the result depends on the methodology as sloppy, non-rigorous and/or unscientific. Indeed, the insight of critical studies in social sciences is precisely the unmasking of the ultimate lack of truth inherent in disciplines, such as international law, where results are never objective but always relative to the observation method. Interestingly, the same seems to hold also for more ‘scientific’ domains, such as theoretical physics, where it is the very presence of an observation that constitutes or modifies the phenomenon to be observed. Yet, the value of methodologies should not be a priori dismissed due to a suspicion of subjectivity. Methodologies contribute towards shedding light on a given phenomenon under specific types of lenses. By doing so, they enable observers to uncover less explored facets of their research subject, be it purely scientific or not.
In this chapter, I intend to make two claims: one specific and one general. The specific argument is that research methods inspired by ethnography and legal anthropology bring significant insights into our understanding of the effects of contested legal regimes such as international investment law (IIL). Especially, they help us understand how IIL influences the lived experiences of affected actors. The general claim is that this type of scholarship contributes to the debates taking place within traditional doctrinal scholarship, in that it challenges international lawyers to be more circumspect about some of their universalist and often sweeping normative assumptions. The argument proceeds by discussing the methodological and theoretical aspects of a collaborative multidisciplinary research project, of which I have been part of over the last five years, that studied impacts of IIL on governance in four selected countries. It warrants an emphasis that the chapter does not aim at introducing the substantive findings of that research project, as the chapter’s goal is essentially methodological. I start this chapter by presenting the research design of a project which served as an inspiration for this chapter. I will show what kind of questions ethnographic or ethnography-inspired research may answer and what kind of methods can be used. After that, the chapter will turn to the challenges ethnographic research in IIL faces and then to discussion on what kind of concepts may be used in such research. The last part of the chapter will discuss differences and points of contact between ethnography as a method of legal research and the traditional doctrinal approaches to law.
The contributions in this book have examined a range of international law issues utilizing non-doctrinal research methods, both quantitative and qualitative. Individual chapters have demonstrated how resort to non-doctrinal methods produces findings which are distinct from, but complementary to, those grounded on doctrinal analysis. Does this also demonstrate that the empirically grounded type of inquiry is ‘more scientific’ – hence, more precise – than the principled analysis of international law characterizing doctrinal research? Marija _or_eska explicitly calls for a more scientific approach to research with a view to proving or disproving axiomatic assumptions, such as the widely held view that the general principles of international law have domestic origins. Recourse to the inductive method of inquiry allowed her to single out and systematically classify general principles, eventually leading to the creation of the most comprehensive taxonomy of general principles of international law to date. She demonstrates that both the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ) have found evidence of general principles in both domestic and international law as well as judicial decisions. Hence, she argues that by methodically coding and classifying data, she arrived at a more scientific result. In this process, doctrinal analysis appears to have played no role, although the findings may well contribute to the development of the theory of the sources of international law.
Elizabeth A. Faulkner
Human trafficking has both a long legal and political history, distinguishing it from many contemporary international legal issues. In 2000, the United Nations (hereafter, UN) Protocol to Prevent, Suppress and Punish the Trafficking in Persons Especially Women and Children (hereafter, the Trafficking Protocol) created the first definition of trafficking by international law. The Trafficking Protocol through Article 3 established three key elements to trafficking, namely the action, means and exploitation. The origins of the Trafficking Protocol’s definition can be traced back to the International Convention for the Suppression of the White Slave Traffic 1910 (hereafter, the 1910 Convention) which identified the terms ‘abuse of authority’, ‘fraud’, ‘threats’ and ‘violence’ as the means elements. A doctrinal analysis of international instruments serves as a mechanism to shine light upon the evolution or transfer of ideology over a period of time. The parallels between contemporary international legal instruments implemented and their historical counterparts highlighted through a doctrinal analysis illustrate the ahistorical state of contemporary research upon the international law of child trafficking. This research demonstrates the necessity of understanding the historical developments of anti-trafficking law to understand contemporary international law. This chapter grapples with the methodological challenges presented by archival research conducted in the League of Nations Archives, Geneva, in early 2018. The study formed part of a wider inquiry ‘The Historical Evolution of the International Legal Responses to the Trafficking of Children – a Critique’. The broader inquiry sought to demonstrate the untold stories of child trafficking and exploitation within the context of international law during the era of the League of Nations and to draw comparisons between historical and contemporary responses of international law to child trafficking. The archives consulted initially focused upon the Summary of State Responses to the Traffic in Women and Children Committee from 1927 and 1928, in addition to a selection of 53 non-digitised registry files between 1919 and 1924.
Academics tend to be socialized into the discourses and techniques of their respective discipline. As a consequence, their research is necessarily informed by certain underlying assumptions and understandings which may be implicit and unconsciously based on traditional conceptualizations of their discipline. International lawyers, compared to social scientists, sometimes fail to acknowledge the beliefs that they hold about international law generally and about their topic of investigation more specifically. This may be an indication of a methodological bias towards the dominant doctrinal position which is reified by this silence. It is notable that international legal scholars who express and discuss conceptual understandings are usually those who deviate from the dominant view and adopt a more critical or even oppositional standpoint, examples of which include the traditions of Critical Legal Studies, feminism and Third World Approaches to International Law. In the discipline of International Relations, on the other hand, academics commonly explicitly situate their research within a theory or paradigm. These paradigms are often described as ‘lenses’ or ways of viewing international affairs. Since interdisciplinary research draws on two or more disciplines it may be confronted with varying, and potentially inconsistent, perceptions of international law, whether acknowledged or unspoken. Nonetheless, interdisciplinary research may ‘bridge the analytic and methodological shortcomings of both fields while also drawing on their respective strengths’. It denaturalizes the doctrinal understandings of what is perceived as international law, how the international legal system is studied, which ideas are considered legitimate in academic enquiry as well as which sources and methods should be employed. A common mistake, however, is the dominance of one discipline over the other. Indeed, early ‘interdisciplinary’ studies often consisted of the imposition of a theoretical perspective on, and explanation of, international law by International Relations scholars or their appropriation of international law as proof for a theory’s claims.
Lassa Oppenheim wrote in 1921 that ‘[h]e [or she] who would portray the future of international law must first of all be exact in his [or her] attitude towards its past and present’. His earlier quasi-manifesto on The Science of International Law in 1908 inspired the adoption of a more scientific approach in researching a well-known ‘mystery’ of international law, namely the ‘general principles of law recognized by civilized nations’ (the ‘general principles’) as codified in Article 38(1)(c) of the Statute of the International Court of Justice. Article 38(1) provides that ‘[t]he Court . . . shall apply . . . (c) the general principles of law recognized by civilized nations’. Although part of the Court’s Statute since 1920, scholars have not yet come to an agreement as to what general principles are. Some authors even argue that general principles do not belong among the sources of international law. The combination of the empirical research and inductive analysis presented in this chapter seeks to (1) provide a more accurate and objective image of what general principles are and (2) contribute towards an agreement on the definition of general principles, a century after their inception as part of Article 38(1)(c).