The exclusion of an individual or entity from the membership of a club or body inevitably raises questions regarding the fairness of the criteria used to take the decision. It is no different when it comes to the exclusion of a state from the membership of an intergovernmental organization (IO) – either through denial of membership or suspension or expulsion from membership. The elementary reason is that membership brings with it certain benefits. These can include political recognition, the possibility of making claims on institutional resources, the opportunity to influence policies of other states in particular areas of international life and signalling and locking-in domestic policies.

This book has been written in the belief that much disagreement in international legal discourse is theoretical. As Steven Ratner and Anne-Marie Slaughter observe in their introduction to the volume The Methods of International Law ‘beneath the surface of much scholarship ... are a host of unanswered questions about presuppositions, conceptions, and missions, all of which influence ... analysis of an issue and ... conclusions and recommendations for decision makers’. There are few occasions to clarify the ‘presuppositions, conceptions, and missions’ because explicit theorization is still the exception and unspoken theory tends to occlude arguments pertaining to the underlying epistemological and ontological premises. It is not as if there are not enough theories of, or about, international law. But these are not subjects of sustained debate and reflection. A focus on theory is also necessitated today by the growing ‘specialization and fragmentation’ of the field of international law.

The policy-oriented approach or the New Haven approach to international law deserves close study for many reasons: its incisive critique of political realism and positivism, its ability to raise vital questions and challenge established doctrines, its stress on the essential relationship between law and policy, its radical thesis on semantic and structural sources of indeterminacy, its articulation of interdisciplinary methods of inquiry for policy analysis, its meticulous investigation of diverse areas of international law, its awareness of the growing interpenetration of international and municipal law, its commitment to the goal of human dignity and world public order, its emphasis on the edifying role of international lawyers, and the fact that a host of illustrious names have confessed to being influenced by it.

It is hoped that the critical encounter with different contemporary approaches to international law and world order has helped clarify aspects of an Integrated Materialist Approach to International Law (IMAIL). In the previous chapters an attempt was made to elucidate the IMAIL perspective on a whole range of themes and issues, the keywords being capitalism, imperialism, feminism, anarchism, state, law, nature, human nature, power, morality, national interest, indeterminacy, compliance, civil society, development, world community, world court and world state. The present chapter only discusses subjects that are not dealt with in those chapters but which are critical to the elaboration of IMAIL.

David Kennedy and Martti Koskenniemi are without doubt two of the most gifted international law scholars on the contemporary scene. They are the ‘founding fathers’ of New Approaches to International Law (NAIL) which is articulated by ‘a group of legal academics’ wishing to ‘experiment with new methods and ideas’. The creation of NAIL owes much to the imagination and energy of Kennedy but Koskenniemi has been a crucial partner in the project. The initial intellectual impulse for NAIL came from Critical Legal Studies (CLS) which was influential at the time Kennedy entered law school. Critical Legal Studies scholars had ‘developed a range of doctrinal, historical, and theoretical accounts’ that revealed ‘the general limitations of liberalism in law’.

Among the most sensitive minds writing in the field of international law is that of Richard Falk. A student of Myres McDougal, whose influence he willingly acknowledges, Falk has articulated a distinctive ‘intermediate’ approach to international law that borrows the element of value relevance from the policy-oriented approach and combines it with the element of autonomy from the pure theory of Hans Kelsen. He is thereby able to link law and policy without blurring the distinction between the two. Falk has used the ‘intermediate approach’ to address a whole range of subjects of international law including that of determinacy of rules. Along with McDougal, Falk is among the few international law scholars to deal in their work with all the five logics that co-constitute international law and world order viz., the ‘logic of capital’, the ‘logic of territory’, the ‘logic of nature’, the ‘logic of culture’ and the ‘logic of law’.

A seminal contribution to rethinking and recasting the role of international law has been made by feminist approaches to international law. While the history of women’s movement and its struggle for women’s rights goes back many centuries, the beginnings of feminist engagement with international law can be traced to the International Congress of Women which met in The Hague in 1915 and called for the peaceful settlement of disputes. Women activism came into to its own in international institutions with the League of Nations; its history is however yet to be written.

It has been observed that classical realism ‘remains the single most important approach for understanding international politics’. One of its most distinguished proponents, Hans Joachim Morgenthau, has been described as among ‘the most important political thinkers of the 20th century and one of the greatest realist thinkers of all times’. His classic work Politics among Nations is certain to have an enduring place in the history of ideas. However, its immense influence in the first decades after the Second World War can be traced primarily to the fact that it was ‘a quintessential cold war text’. It explains why in the wake of Morgenthau’s opposition to the Vietnam War the influence of classical realism began to wane in the United States.

Meaning of the ‘rule of law’

The ‘rule of law’ signifies that all persons (natural or juridical), including organs of the state, should comply with laws adopted through prescribed constitutional procedures. Its essence is the prohibition of the exercise of arbitrary power. The scope of the rule of law includes the procedural guarantees of general laws and an ‘impartial’ due process (Neumann 1985, 265–267; Sypnowich 1990, 55). It has also come to be associated with the protection of core human rights. But despite a certain common understanding, the rule of law ‘is an exceedingly elusive notion’; ‘contrasting meanings are held’ by reasonable people (Tamanaha 2004, 3). There are several reasons for this.

First, the differences can be traced to the use of a positivist as against a deliberative conception of law. The validity of a legal rule is usually traced to adherence to a prescribed procedure, most often laid down in a written constitution. But as Jürgen Habermas points out, rules based only on positive enactment may sometimes lack legitimacy for ‘the belief in legality can produce legitimacy only if we already presuppose the legitimacy of the legal order that lays down what is legal. There is no way out of this circle’ (Habermas 1987, 265). Legitimacy can be secured only if both particular laws and the legal order are justified by good arguments as opposed to drawing strength from compliance with formal processes or being the outcome of the mere exercise of power. Thus if the legal order is based on some originating violence, as it often is, the legitimacy of legal rules tends to be undermined (Derrida 1992, 6). This is of particular relevance when the relationship between colonialism and international law is explored. Habermas’ understanding of the rule of law is however a regulative ideal. The extent to which it is complied with will bestow a greater or lesser degree of legitimacy on the legal order.