Edited by John Linarelli
Chapter 9: Critical theory and international economic law: a third world approach to international law (TWAIL) perspective
In a recent essay on “What is International Economic Law?” Steve Charnowitz presents a survey of definitions of international economic law (IEcL) and concludes that given “the difficulty of mapping the field” it has not been satisfactorily defined. In the absence of an adequate definition Charnowitz goes along with Joel Paul’s understanding that IEcL includes “all national and international legal norms that affect transnational movement of goods, services, capital and labor.” But as Charnowitz notes, while there is much that is “attractive in Paul’s broad functional definition, the challenge is to identify threads of internal coherence in wide-ranging legal norms.” The want of “threads of internal coherence” is also an explanation for why “no general theory of international economic law [has] yet been fully developed in the literature.” The reason for the absence of “threads of internal coherence” and a “general theory of international economic law” can be traced to the dominant positivist method adopted by mainstream international economic law scholarship (MIEcLS) that eschews serious engagement with the world beyond norms or avoids what Hans Kelsen called “methodological syncretism.” In Kelsen’s view international lawyers are neither expected nor qualified to consider the economic and political contexts in which rules are negotiated or the social consequences flowing from them. The task of the international lawyer is confined to determining, interpreting, and applying the law. Consequently, the intimate relationship between the structure of the international economic system (IES), or its synonym global capitalism, and IEcL is never explicitly explored.
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