STUDIES IN LOGIC, GRAMMAR

AND RHETORIC 66 (79) 2021

DOI: 10.2478/slgr-2021-0017
This work is licensed under a Creative Commons Attribution BY 4.0 License
(http://creativecommons.org/licenses/by/4.0)

Michał Stępień
University of Wrocław
e-mail: michal.stepien@uwr.edu.pl
ORCID: 0000-0002-9068-9467

TRANSPARENCY OF APPROACHES
TO INTERNATIONAL LAW:
A SHORT STORY OF AN UNSUNG HERO

Abstract. This article is about the problem of non-disclosure of an assumed

method and approach to international law. That makes some real and current
issues of international more difficult to grasp – and how to debate about some-
thing if there is a misunderstanding of the basics? The problem is depicted with
two examples: the attitude of international law toward the statehood of Taiwan
along with the on-going development of the Responsibility to Protect doctrine.
Both reveal the clash between so-called black-letterism and a policy-approach
to international law. Meanwhile the doctrinal method is fully functional and
mostly accepted in domestic law, though often contested in international law.
But after all, international law being sui generis law is not just an instance of
the domestic-type law which is the effect of particular features of the interna-
tional community.
Keywords: international law, legal theory.

There are many definitions of international law, but the one being
mostly good enough is this: “International Law or the Law of Nations is
the name of a body of rules which – according to the usual definition –
regulate the conduct of the states in their intercourse with one another”
[Kelsen, 1967, p. 3]. This one is a little bit outdated of course – it says noth-
ing about international organizations nor individuals. Nowadays it’s more
common to define international law as the law of the international commu-
nity, while the international community is blurry enough to cover individuals
and international organizations. But states are still the “principal actors on
the international scene” [Cassese, 2005, p. 3 ff]. Anyway, international law
as such is a derivative of the international community.
Key features of the international community make international law
a sui generis legal system. The reasoning, by analogy with domestic law
rules, is quite tempting as well as quite misleading. The same applies to in-

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Michał Stępień

ternational law research method. A doctrinal approach is obvious for many

reasons. First of all, as a matter of legal education, that approach seems to
be what lawyers mostly do. It is actually what students of law learn dur-
ing law studies. Second, domestic law is usually more developed. Alongside
the increasing importance of international law, it is still under construction.
An inherent feature of international law is an overwhelming lack of civitas
maxima resulting in the lack of an enforcement mechanism. To grasp this
“special” nature one should modify the definition of law in general or the
particular elements of such a definition1. Another option, nowadays quite
rare, is to negate the legal character of international law by using a label
of “positivist morality” [Austin, 1954, p. 201]. The problem is that, de-
spite all of this, the doctrinal approach is quite common and its application
is so obvious that mostly it is not considered as an issue. One should be
aware that these deficiencies (including enforcement deficiency) are related
to so-called general international law. Thus, reciprocity is still applicable
in parts of international law, while nothing precludes states from creating
more institutionalized enforcement mechanisms. When community inter-
ests are at stake, like in the case of multilateral environmental agreements,
treaty bodies are quite common [Tomuschat, 2019, p. 610 ff]. General in-
ternational law is a sort of toolbox for law-making between members of the
international community. Ultimately, the European Union has also been
incorporated within international law. Anyway, diffused sanctions and non-
compulsory jurisdiction of international courts is the state of affairs that
lex specialis departs from. The construct of collective countermeasures has
been enhanced by Articles on Responsibility of States 2001. This can be
considered progress – especially when it results in creating obligations erga
omnes – but it is not functional since the jurisdiction of international courts
is intact by these Articles.
The doctrinal approach is fully applicable in those branches of inter-
national law where the problem of enforcement is somehow contained and
the content of rules is domestic-like. One instance is the administrative
law of international organizations. Some international organizations have
established specialized so-called Administrative Tribunals [Klabbers, 2002,
p. 269 ff]2. A deduction based on syllogism [Posner, 1990, p. 39 ff], so trivial
(even taking into account the issue of open texture inherent to law as such
[Hart, 1961, p. 125]) in a case of domestic law, becomes however more prob-
lematic in the case of international law. This is because a precondition of
such legal syllogism is a major premise (which is a legal norm) and the mi-
nor being the fact or circumstance of a particular case. The point is that the
legal norm – a major premise – is contentious quite often in international

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law. The reason is the still significant role of customary law and fact, that
the law of treaties has some real flaws and gaps – one instance is the per-
missibility of reservations to treaties; this issue is most pressing in the case
of human rights treaties [Simma, 1994, p. 342 ff; Villiger, 2009, p. 106 ff].
Thus there is a persistent discrepancy between lawyers on the sources of
international law. That taken alone is not an issue if such discrepancy is
openly stated. In the case of domestic law, such an issue is settled by exten-
sive legislation and frequent practice [Matczak, 2008, p. 76]3. That makes
the doctrinal approach a good choice in domestic law – it is limited however
by the open texture of law and in rare cases by the concept of “an illegal
law” [Radbruch, 2006, p. 7].
The key problem with methodology in legal science is not that one
approach is worse than another. The doctrinal approach is quite common
in the case of domestic legal systems – it seems even to be “an obvious
choice”. Mostly there is nothing about methodology in judicial decisions –
this is because the doctrinal approach is “transparent”. But if something
works in the case of domestic law it does not mean it works for international
law, too. Most of all, international law is devoid of a developed judiciary –
which is the result of a lack of civitas maxima in the international commu-
nity. At the same time, in some branches of international law a doctrinal
approach works as it does in domestic legal systems – e.g. in international ad-
ministrative law. The main deficiencies of international law are non-coherent
state practice and an ongoing controversy about the sources of international
law, which is really about the assumptions made about the theory of inter-
national law.
Relevant theories of international law may be described with two at-
tributes: its attitude toward the so-called “test of pedigree” and the sub-
stantial completeness of international law. Of course there are many possible
permutations of both attributes, but by simplification they may be reduced
to four approaches toward international law. These approaches are a rule-
approach, a policy-approach, idealistic, and sceptical approaches [Kosken-
niemi, 2006, pp. 182 ff]. The rules-approach is the one that most looks like
the doctrinal approach. In the rule-approach to international law the key
notion is the binding power. What is the most important, according to the
rule-approach: a norm is binding or a particular norm is not a legal norm at
all. There are no shades of grey. This approach is coupled with a very strict
“test of pedigree” which makes norms of international law less numerous
and international law as such more difficult to change. According to that
approach there is nothing like soft law and the rules of customary law are
endured by well documented practice4.

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The policy-based approach is the complete opposite5. Most of all it is

less demanding about the sources of law. It is wide open to the idea of soft
law. In that approach the binding power of law is not consistent but is more
diluted. That is coupled with a more liberal attitude toward the formation
of customary law. According to this approach, opinio iuris prevails, not
usus – practice. Even when usus is said to be relevant, the definition of
such practice may be misleading. That ends in so-called double counting
of particular acts as manifestations of opinio iuris and usus at the same
time – which means abandoning the inductive method for determining the
existence of norms of international customary law [Talmon, 2015, p. 420 ff]6.
This eventually leads to a larger number of legal norms, but some of them
are by their very definition soft not hard thus their legal effect may be
rather persuasive [Salmond, 1947, p. 177 ff]. Opposition between the rule-
approach and policy-approach is that rule-approach is not so tempting in
the application of international law. This is because the doctrinal method in
domestic law alongside a strict approach to the “test of pedigree”, assumes
that in the legal system besides the rule of recognition there is also a rule
of change. That is a well-developed institutional mechanism which results in
extensive legislation and is based on understanding domestic law as a legal
system. The case of international law is quite different [Hart, 1961, p. 222]7
unless we deal with the law-making process in international organizations8.
The pressure for change makes soft law a good choice – but of course there
comes a price – blurring the notion of binding power. Thus it is easier to
jump into a policy-approach if one awaits international law being responsive
to contemporary needs – especially in the field of human rights protection.
The opposition between different methodologies and approaches in in-
ternational law is often undisclosed, but that is what drives many contro-
versies in the realm of that law. One example is the issue of Taiwanese
statehood. The doctrinal approach to international law will inevitably lead
to the conclusion that Taiwan is a part of the People’s Republic of China and
agreements concluded by Taiwan with States non-recognizing its statehood
are not treaties, but Memoranda of Understanding [Aust, 2008, p. 32 ff].
Arguments for these statements are inter alia the fact that Taiwan claimed
for many years to be China [Chan, 2009, p. 474]. After all its official name
is still the Republic of China and “obviously” that fact by itself makes
the UN membership application of Taiwan submitted in 2007 not relevant9.
But after all the argument based on the similarity of names is flawed be-
cause international practice recognizes so-called divided states, like it was in
the case of the Federal Republic of Germany and the German Democratic
Republic. Thus, the “Republic of China” as the name of a state different

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from the People’s Republic of China is not as such an argument against Tai-
wanese statehood. From the point of view of any other approach to interna-
tional law not so attached to doctrinal tenets, the attitude towards Taiwan’s
statehood claim will be completely different. This is partially the result of
considering different factors in the fact assessment process. The approach
which seems to support “Taiwan’s claim to statehood” [Chan, 2009, p. 491]
is one attaching greater importance to the effectiveness. Ongoing discourse
on “alleged” Taiwanese statehood reveals more and more a discrepancy
in assessing the relevant facts in the case of Taiwan. In addition the phrase
“claim to statehood” used inter alia by P.C.W. Chan is misleading. While
this is perfectly correct in the case of emerging states, it is hardly applicable
to the state-or-entity lasting for over 70 years.
In the doctrinal approach, breaking out of strictly defined categories is
not possible and the “duck test” is not applicable at all. Thus, from that
point of view the argument that Taiwan, being the object of a widely ap-
plied policy of non-recognition, should eventually be treated as if it were
a State is not convincing10. But what seems to be the most controversial
issue is Taiwan exercising its ius tractatuum. Thus Taiwan concludes inter-
national agreements – even States pursuing the policy of non-recognition of
Taiwan based on a “One-China policy” conclude “treaty-like” agreements
with Taiwan. These agreements are related inter alia to issues of double tax-
ation or cooperation in criminal matters11. Such agreements have been for
instance concluded with Poland12. Identifying these agreements as treaties
is controversial e.g. from the point of view of the Polish legal system. This
is because the Polish constitution does not define the term “treaty” nor “in-
ternational agreement”; however, such agreements (but only ratified ones)
are enumerated among the sources of Polish law. Agreements with Taiwan
seem not to be “ratified international agreements” according to Article 87
of the Polish Constitution – these agreements are simply not ratified. Thus
these agreements are not sourced from Polish law. This does not preclude
considering them as treaties in simplified form.
In the case of cooperation in criminal matters, the key role is played by
the State and its organs. But agreements on double taxation by their very
definition may interfere with the legal situation of individuals. To make this
happen in relation to the agreement between Poland and Taiwan on double
taxation a different solution was used – the agreement became an annex to
the Statute on double taxation in relations with Taiwan. Subsequently the
same solution was applied in relation to the Poland-Taiwan agreement on
legal cooperation in criminal matters. That is understandable because that
agreement is aimed to extend criminal procedure with mutual legal assis-

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tance from Taiwan, e.g. by taking the testimony or statements of persons and
serving documents13. However due to the common policy of non-recognition,
such agreements are referred to as Memoranda of Understanding, but this
is done on purpose to legitimise the view that treaty relations with Taiwan
are not international agreements as such [Aust, 2013, p. 33 ff]14.
The definition of a treaty as established by Article 2 of the Vienna
Convention on the Law of Treaties is “an international agreement concluded
between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and
whatever its particular designation”. The very of idea of a Memorandum of
Understanding – an agreement concluded in one or another way with Taiwan
– boils down to the assertion that Taiwan is not a State. Thus considering
such Memoranda as treaties depends upon Taiwanese statehood. But at the
same time such consideration would serve as evidence of that statehood.
Thus to get out of that loop one has to move on to some external point of
view and such is possible inter alia in line with a policy-approach. Anyway,
discussion about the legal status of Taiwan is not about the application of
general rules of law but about the applicability of such rules. What we are
dealing with is not the instance of a legal syllogism, but the interference from
assumptions while these assumptions are made a priori. The real discussion
in the realm of international law is about these assumptions, but that is often
not fully realized. That makes the argument of MOU’s being one speaking
against statehood – but eventually that argument is a circular reasoning
fallacy.
At close look the very concept of the MOU is a disguise for the creation
of soft-law treaties [Klabbers, 2020, p. 38 ff]. Without a policy-approach
the concept so extensively described by A. Aust is far from being coherent.
A. Aust is a huge proponent of the distinction between treaties and MOUs.
However at the same time he points out that “[o]ne must be extremely care-
ful in assessing the status of any instrument called [MOU]” – that is because
“sometimes one will find a treaty called [MOU]” [Aust, 2013, p. 21], which
renders the very idea of MOU redundant. That concept was originally pro-
posed by J. Fawcett in 1953 and its core is that “there is no presumption
that States, in concluding an international agreement, intend to create legal
relations at all, and this intention must be clearly manifested before a legal
character is attributed to the agreement” [Fawcett, 1953, p. 385]. The idea
was referring to a black-letter interpretation of Article 1 of VLCT Draft
Articles15. According to that provision “Treaties are agreements between
States, including organizations of States, intended to create legal rights
and obligations of the parties”. Nowadays the MOU concept is based on

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black-letter interpretation of a treaty definition: “«treaty» means an inter-

national agreement concluded between States in written form and governed
by international law”. The feature of being “governed by international law”
is part of differentia specifica – MOU is thus an agreement not governed
by international law (nor by domestic law). This is an instance of trivial
a contrario reasoning, but the result is the idea of an agreement without ap-
plicable law at all. While that seems to be a doctrinal approach, it is in fact
a policy-approach which transforms soft-law into the realm of treaty-like
relations. The point is while the issue is a vel non specific act, a resolution
of the UN General Assembly is much less controversial then the distinction
between treaties and MOU.
Among the advantages of MOU, A. Aust [Aust, 2013, p. 40 ff] mentioned
confidentiality, lack of formality, ease of amendment, ease of termination,
and capacity to be used in relations with non-state entities. However, all
these “amenities” are available with treaties in a simplified form – except
for relations with non-state entities. It is not a very convincing argument
that agreements between Poland and Taiwan are not treaties because such
agreements must be called MOU, even if they include rights and obligations
very similar to these found in treaties on the same issues. Implementation
would be the same if both Polish-Taiwan agreements were replaced with
treaties in simplified form. The issues of Taiwanese statehood and MOU
are separate ones, but the MOU argument is often used in discussions on
Taiwan – i.e. because it makes the lack of capacity for Taiwan to conclude
treaties more objective, while it is just a disguise of the policy-approach.
One well-established tenet of international law doctrine is about sub-
jectivity in international law. According to that, States are subject to inter-
national law, intergovernmental international organizations are secondary
subjects of that law, and individuals are not considered to be subject to
international law at all. In the doctrinal approach international law is made
by States for States. Individuals, even if they do not matter in some po-
litical systems, do matter in democracies, but democracy is not obligatory.
An example of an ongoing controversy in international law related to its
subjects (and the protection of individuals) is the issue of Responsibility
to Protect16. According to that doctrine sovereignty is linked with respon-
sibility for the population [Deng, 2010, p. 354 ff]17. If a State is somehow
non-functional, the international community may step in to prevent serious
atrocities like crimes against humanity from happening. That is actually
a humanitarian intervention, but because the institution has been abused
so many times, the term R2P is used. The doctrine was presented during
the UN World Summit in 200518, while discussion on it started a while be-

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fore. The view presented by A.A.C. Trindade seems to explain what kind of
change in international law is necessary to make R2P work: “The prevalence
of the principle of respect of the dignity of the human person is identified
with the ultimate aim itself of Law, of the legal order, both national and
international” [Trindade, 2013, p. 279]. Thus, legitimization of R2P is about
moving from a doctrinal, black-letterist approach toward international law
to the policy-approach where the policy is “the dignity of human person”.
While R2P seems to be fully normative from the point of policy-approach
following the less strict so-called “test of pedigree”, the situation seems to
be slightly different from the doctrinal approach point of view.
Until now there are a still increasing number of publications about the
topic (which are published, among others in the Global Responsibility to Pro-
tect Journal); in 2009 the UN Secretary General presented the report titled
Implementing the Responsibility to Protect: accountability for prevention19
– all of which is coupled with an unprecedented degree of institutionaliza-
tion [Zajadło-Węglarz, 2017, p. 570.]. Thus there are the Special Advisory
of the Secretary-General on the Prevention of Genocide and the Special
Advisory of the Secretary-General on the R2P. Besides that there also non-
governmental organizations dedicated to supporting the mechanism of R2P
– you can mention here The Global Centre for the R2P, the International
Coalition for the R2P and the Asia Pacific Centre for the R2P. Last but not
least the R2P doctrine argumentation is being applied more and more often
in the resolutions of the UN Security Council, including those enacted on
the basis of VII of the UN Charter20 which makes them binding. The R2P
doctrine has even been abused already – in 2008 Russia claimed that the
Russian intervention in South Ossetia was justified by R2P doctrine because
the ultimate goal was to prevent “genocide” from happening – of course, the
one the Georgian authorities were planning to commit [Evans, 2009, p. 25].
Assuming that the Russian claim was actually based on R2P doctrine, it
proves that it is taken into consideration by many governments.
Notwithstanding how devoted we may be to the R2P doctrine and no
matter how desirable it is from the point of view of human rights protection,
one should understand that when confronted with a doctrinal approach to
international law the conclusion may be completely different. First of all,
all general acts on R2P are according to that labeled as soft law. As such
they are not binding unless they are considered to be part of general inter-
national law being customary law or a general principle of law. Linking R2P
to general principles of international law seems to be much more promising
because after the law, practice (usus) is not a premise of the principle of
international law. From the point of view of the doctrinal approach, princi-

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ples of law are the least tangible source of international law21. To deal with
this, supporters of the R2P doctrine explain that it does not go beyond
already existing institutions of international law [Welsh, 2013, p. 376]. It is
about article 139 of 2005 World Summit Outcome. A careful reading of that
provision reveals how much R2P is dependent upon existing competences of
the UN Security Council, which eventually makes the mentioned provision of
the 2005 World Summit Outcome redundant. But if R2P is to be treated as
a general principle of international law, thus it is hardly possible to identify
the principle with the specific article of the UN General Assembly Resolu-
tion on 2005 World Summit Outcome. Otherwise it would be an instance
of law-making by the UN General Assembly – and such “legislation” is not
a source of law to the doctrinal approach. Thus if we imagine the discussion
on R2P between an international lawyer representing the policy-approach
to international law and another one being an enthusiast of the doctrinal
approach, soon it will be a discussion about the tenets of international law.
The whole issue with the legal method in international law discourse is that
mostly the assumed method is not revealed or even thoughtful.
In conclusion, one should underline that none of the choices of legal
method in the realm of international law is hopelessly problematic. The key
is disclosure of the assumed method and approach to international law. Oth-
erwise it becomes a tacit assumption. It makes legal discourse on particular
issues of international law less transparent and more apparent. Ultimately
the law seems to be a code we can use for communication. It is a good idea
to explain at the very beginning of a debate how basic terms are understood.
Discussion about e.g. treaties or customary law (and other sources of inter-
national law) or recognition of a state should be coupled with explaining
the key assumptions about the debaters’ approach to international law.

NOTES
1 For instance H. Kelsen is so attached to the idea of sanction being the premise of
law that, according to him, “International law is law in the same sense as national law,
provided that it is, in principle, possible to interpret the employment of force directed by
one state against another either as sanction or as delict” [Kelsen, 1967, p. 17].
2 The example is the UN Internal Justice System established by the UN General As-
sembly Resolution 63/253 on the Administration of justice at the UN, adopted on 24 De-
cember 2008. The argument for the fact that the UN administrative law is applicable in
relation to UN staff members just like domestic law is inter alia “judicial experience in the
field of administrative law, or the equivalent within one or more national jurisdictions”
(article 4.3 of the UN Dispute Tribunal) being the precondition of appointment as a judge.
3 Eventually this is how the law-making role of the ICJ is justified, too [Shahabud-
deen, 1997, p. 76 ff]. A safe assumption is that judicial decisions in the realm of inter-

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national law “may serve as material for the determination of a rule of law by a later
decision”.
4 International law, just like law as such, is still changing due to reflecting “the social
and political realities of the day” [Higgins, 2009, pp. 98–99].
5 Sceptical and idealistic approaches are to some extent alterations of the policy-
approach and rule-approach at the same time. The sceptical approach is simply a manifes-
tation of a disappointment by international law – according to that “international law is
irrelevant as neither extensive nor normative” [Koskenniemi, 2006, p. 200]. The idealistic
approach is an extreme form of policy-approach and rule-approach, too. Accordingly, the
rule-approach is “formalism” and the policy-approach is extended by completely changing
the sources of law. Law is binding (just as in the case of rule-approach) but law “must be
interpreted so as to reflect the new conditions of international law” [Koskenniemi, 2006,
pp. 213–214].
6 The deductive method in that case means simply that norms of international custom-
ary law are “made” by deductive reasoning from general principles of international law –
since then what we get may be called “deductive customary law”.
7 H.L.A. Hart clarifies that the analogy between international and domestic law is pos-
sible only in relation to the content but not the form of law. That is because international
law is simply a “régime of primary rules”.
8 In the case of international organizations, “a constituent instrument” is in many as-
pects a sort of “constitution” which embodies secondary rules – especially the rule of
recognition [Klabbers, 2002, pp. 249–250].
9 Request for the inclusion of a supplementary item in the agenda of the sixty-second
session – Urging the Security Council to process Taiwan’s membership application pur-
suant to rules 59 and 60 of the provisional rules of procedure of the Security Council and
Article 4 of the Charter of the United Nations – Letter dated 13 August 2007 from the
representatives of Belize, Burkina Faso, the Gambia, Honduras, Malawi, the Marshall Is-
lands, Nauru, Palau, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Sao Tome
and Principe, Solomon Islands, Swaziland and Tuvalu to the United Nations addressed to
the President of the General Assembly, A/62/193.
10 Taiwan maintains diplomatic or quasi-diplomatic relations with over 70 States and is,
as a “customs territory”, a member of the WTO.
11 Taiwanese participation in the WTO agreement is a direct result of being a WTO mem-
ber; thus being party to Multilateral and Plurilateral WTO agreements is not conclusive.
That is because these agreements by their very definition are open for WTO members.
12 Agreement between the Warsaw Trade Office in Taipei and the Taipei Economic and
Cultural Office in Warsaw for the avoidance of double taxation and the prevention of
fiscal evasion with respect to taxes on income, signed on October 21, 2016 in Taipei
(Dz.U. 2016, item 2244) and Agreement between the Polish Office in Taipei and the
Taipei Representative Office in Poland on the Legal Cooperation in Criminal Matters
signed on June 17, 2019 in Taipei (Dz.U. 2021, item 230).
13 Article III of Poland-Taiwan agreement on cooperation in criminal matters.
14 According to A. Aust Memoranda of Understanding use “less mandatory terms”, but
at the same time he admits that Memoranda of Understanding – agreements concluded
with Taiwan – contain “some treaty-like language”. Both agreements concluded between
Poland and Taiwan confirm that. But notwithstanding that, A. Aust jumps to the con-
clusion that these agreements are not treaties.
15 Law of Treaties, Document A/CN.4/63, Report by Mr. H. Lauterpacht, Special Rap-
porteur, Yearbook of International Law Commission, 1953, vol. II, p. 90.

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16 Hereafter: R2P.
17 M.F. Deng makes the following remark regarding the duty of a State towards its
citizens: “The notion that a sovereign power is responsible for the welfare of its citizens
seems so obvious that it is sometimes difficult to remember that it is, in fact, a normative
concept of recent origin”.
18 Articles 138 and 139 of 2005 World Summit Outcome – Resolution 60/1 of UN General
Assembly (A/RES/60/1).
19 A/71/1016 – S/2017/556.
20 The Resolution 2556(2020) adopted by the UN Security Council on 18 December
2020 on the situation in Democratic Republic of Congo, where the Security Council re-
calls that “the Government of the DRC bears the primary responsibility to protect civil-
ians within its territory and subject to its jurisdiction, including protection from crimes
against humanity and war crimes”. Quite similarly relevant is a reference in the Resolution
2552(2020) adopted by the UN Security Council at its 8776th meeting, on 12 November
2020 on the situation in the Central African Republic.
21 The reason for enumerating general principles among sources of international law in
article 38 of ICJ Statute was to make it possible to fill gaps in international law. That
allows ICJ to avoid non-liquet [Lauterpacht, 1933, p. 64 ff].

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