Chimène Keitner (UC Davis School of Law), State Responsibility as Myth and Legend, 120 Am. J. Int’l L. (forthcoming) on SSRN. Here is the abstract:
This essay reviews Alan Tzvika Nissel’s Merchants of Legalism: A History of State Responsibility (1870-1960) (2024) and Allison Powers (Useche), Arbitrating Empire: United States Expansion and the Transformation of International Law (2024). It approaches contemporary international law as ‘part myth, part legend.’ It is part myth, because understandings of international law promulgated largely by Global North countries rely on shared fantasies about a set of core values underlying the post-World War II international order. It is part legend, because international law’s doctrinal moorings lie in accumulated state practice, and in the meanings and interpretations given to that practice over time. Nissel’s book chronicles the practice of arbitral tribunals established primarily to adjust claims between the United States and countries in Latin America. It illustrates how jurists drew upon the practice of arbitration and theories of public law to shape enduring principles of state responsibility. Powers Useche’s book illuminates ways in which foreign nationals injured in the United States used U.S.-backed claims commissions to catalogue and demand redress for state-sanctioned violence. Both Nissel and Powers tell stories of unintended consequences: for Nissel, the development of a “social framework” for state responsibility that exceeded the bounds of bilateral dispute resolution; for Powers, the exposure of U.S. hypocrisy in imposing a “standard of civilization” on other countries while denying the application of an equivalent standard at home. These books leave us with the question whether international law can survive as ‘legend’—a set of doctrines and shared understandings built from accumulated practice and meaningful enough to shape state conduct—alongside heightened contestation of, and disillusionment with, its mythological foundations. Countries need not abandon the “hope of ordering the world through law.” Yet what enduring international legal frameworks will look like—and who can serve credibly as their custodians—remain to be seen.
Highly Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum