Cultural Relativism the American Way: The Nationalist School of International Law in the United States

This article examines a fairly recent, exponentially growing, and increasingly unavoidable body of international legal scholarship in the United States of America. This scholarly movement is here labeled "Nationalist International Law" (NIL). Considerable debate in American international law circles surrounds at present two lines of questions raised in the writing of individuals that are here associated with NIL. The first line deals with the status of international law in the United States' constitutional order and in particular the role of federal judges in enforcing international legal norms. The second broad area of debate concerns the nature of international law independently of domestic legal orders, and especially whether it should be considered law at all, as well as the proper method to be applied to its study. The type of writing, of arguments, and of methodology differ depending on the type of debate: in the first one the problems are framed as (mainly) ones of constitutional law, whereas in the second the problems are presented as mainly ones for political science to solve. The main argument of the article is that beyond this disciplinary divide, and beside the mere fact that the same people sometimes participate in both debates, the two broad types of interventions made by people associated here with NIL are united by a common methodological basis and project. In the combination of the two we can truly witness the contours of a scholarly movement of "Nationalist International Law" and explore the more important consequences of its enterprise for the discipline and the life of international law. The first part of the article presents a background image of academic activity as a form of politics, in order to underscore that what matters here is not the obvious political alignment of individual academics, but the dynamics of a scholarly dialogue that both highlights and obscures the politics of international law. The second part reconstructs NIL's scholarship as a collage of three domains of intervention, the "outer realm", the "inner realm", and the "sovereign border", corresponding to different modes of writing and intervention on the part of NIL. The third part presents the figure of "imperial sovereignty" as the intellectual and political outcome of NIL's unifying methodological nationalism, particularly as it results from NIL's debate with the liberal internationalists' self-positioned alternative. Finally, concluding thoughts are proposed on international legal nationalism, NIL's reactionary rhetoric and xenophobic epistemology, and the space left for a so-called European contribution to international legal dialogue.