From the National to the Comparative in International Law: Cold War Redux?

Abstract

Abstract Recent years have witnessed greater attention to the ‘national’ dimension in international law and, in its wake, a move towards comparison. The first section of this article examines the early rise of ‘comparative’ approaches to international law with reference to the pioneering work of William E. Butler during the Cold War and contextualizes the coinage of the term ‘invisible college of international law’ at a time of relative ‘détente’ in the 1970s, suggesting, furthermore, that a pattern of repetition and renewal in engagement with constructions and international legal thought in the Cold War period is currently taking place. The second section examines a move to the national in international law and both the promises and perils of comparative international law, including because of the parallel introduction of the new divisive-prone descriptors of ‘authoritarian international law’ and ‘rules-based international system’. It also highlights the cyclical nature of the ‘comparative’ turn to the national in international law now that the war in Ukraine and the strongly divided reactions to Israel’s protracted military campaign in the Gaza Strip are crystallizing a new Cold War-like scenario in an emerging post-Western-centric and multi-polar order. The conclusion recaps the main findings of the article and suggests that comparative international law should be used to enhance, not to undermine, the language of international law as a two-way bridge between peoples and nations in times of turmoil.