It is an honour to write the foreword for Malcolm Jorgensen’s fine book. I have long been a believer in the need for comparative scholarship about international law. International lawyers from different states, regions and geopolitical groupings often have distinct backgrounds, influences, opportunities, incentives, networks and spheres of influence. Instead of constituting a single, uniform field, international law is produced from an amalgamation of multiple, partially overlapping fields and communities. If we truly want to understand our field, we need to be aware of what international law looks like from diverse perspectives and through different eyes.

Comparative international law often focuses attention on divisions among international lawyers located in, coming from or educated in different states, regions or geopolitical groupings. In this sense, it is often horizontal in nature, drawing comparisons across states. But to develop a really sophisticated understanding of how international law is approached within a single state, we also need vertical studies that unpack differences within a particular state. American international lawyers as a group certainly differ from Chinese or French international lawyers, but they are also not homogenous and often differ from each other. The trick is being aware of differences both across and within states.

It is this difficult horizontal and vertical work that Jorgensen achieves so brilliantly in this volume. He starts from the horizontal observation that international lawyers from inside and outside the United States often have different perspectives on America’s engagement with the international rule of law. Is America a champion of the international rule of law or a flouter of it? Jorgensen then proceeds to skilfully unpack what different types of US international lawyers mean when they proclaim fidelity to the international rule of law. In doing so, he sheds light on both an internal/external disconnect and the variation within America’s internal make-up. If we had more studies like this of different countries, our understanding of different national approaches to international law and foreign policy would be greatly improved.

Jorgensen’s sophisticated work takes the skill of an insider/outsider. Jorgensen has read deeply in the American literature and met and interviewed many key international lawyers, so he is able to discuss US approaches with nuance and credibility. He approaches the subject with empathy, seeking to understand what international law looks like from within the US prism. He critically analyses what he finds without seeking to condemn or dismiss. He also has the advantage of looking at American international lawyers with the eye of an outsider. This makes it possible for him to observe some aspects that American international lawyers might be unable to detect because they are rendered natural or inevitable. Not himself wanting to work for the US government, Jorgensen can also speak more freely than some of his subjects, who often rotate in and out of government and academia.

Jorgensen analyses competing conceptions of American exceptionalism and suggests breaking down US international law foreign policy approaches based on two axes. The first concerns governance: how internationalist versus nationalist is the international law policy approach? The second concerns values: how liberal versus illiberal are the values that are pursued? These questions produce four ideal types: liberal internationalism, illiberal internationalism, liberal nationalism and illiberal nationalism. While some famous US international lawyers (including Harold Koh and Anne-Marie Slaughter) are clearly liberal internationalists, this typology provides a useful way to understand the approaches of President Trump and advisers such as John Bolton who seem much more illiberal nationalist in their inclinations. America’s approach to international law often represents the push and pull of actors in these different ideal types, as Jorgensen shows with respect to US policy toward the International Criminal Court.

I was asked to write a foreword for this book, American Foreign Policy Ideology and the International Rule of Law, at the same time as I was asked to write a blurb for Professor Congyan Cai’s new book, The Rise of China and International Law: Taking Chinese Exceptionalism Seriously.Footnote ¹ In some ways, the books could be understood as bookends. One seeks to take a deep dive into international law’s most significant existing great power, while the other takes a look at the approach of international law’s most significant rising (or returning) great power. Both look at national claims to exceptionalism. Given the emerging US–China rivalry internationally, it would behove all international scholars to read both books so that they can better appreciate the distinctive approaches of these two great powers whose relationship will significantly influence the development of international law and relations in the coming decades.

In my work on China and the United States, I have often been struck by the way in which they can make similar statements but mean utterly different things by them. Invocations of democracy and the rule of law are a case in point. The United States has been a strong advocate for democracy on the international stage, but by this it means that it supports states (including China) becoming democratic on a national level. In terms of international relations, however, the United States has been decidedly undemocratic in its approach to lawmaking. Far from accepting a one-state-one-vote or one-individual-one-vote approach to international lawmaking, the United States has been happy to enjoying the lawmaking advantages that have come with being the world’s only superpower.

China is the exact opposite. As an authoritarian state, China has strongly resisted calls by other states (including the United States) for it or other nondemocratic states to become or be made to become democratic. This viewpoint lies behind China’s rejection of calls to embrace values such as human rights and doctrines such as unilateral humanitarian intervention, as well as its professed loyalty to principles such as the sovereign equality of states and the doctrine of non-intervention. At the same time, China has resisted the legitimacy of Western and US hegemony in international lawmaking, insisting (in principle, though not always in practice) that all states should be involved in lawmaking without the strong being able to impose their will on the weak. China’s emphasis on sovereign equality, including equality in lawmaking, is sometimes characterised as a belief in ‘democracy between states’ as opposed to ‘democracy within states’.Footnote ²

When the United States calls internationally for democracy, it often means democracy at home but hegemony abroad. By contrast, when China calls internationally for democracy, it seems to be embracing some concept of democracy abroad but hegemony at home. One adopts a national level of analysis; the other an international level. It would be easy to stand in the shoes of one state and simply dismiss the other state’s invocation of these terms as opportunistic. But it is probably more useful to examine what policymakers in each state mean when they invoke these terms, being aware of the differences between them and the internal inconsistencies within each position. Critique is useful, but understanding is a necessary first step.

In reading both books, it was striking to me that Cai’s book on China’s approach to international law is replete with references to the United States, but Jorgensen’s book on US approaches to international law contains only one reference to China. This observation does not amount to a critique of the book; instead, the asymmetry reflects the way in which our field has been constructed to date. One cannot be an international lawyer without knowing a lot about America. However, it has long been possible to be an international lawyer whilst writing – and, for some, even knowing – little about China. America has been central, but China has been peripheral. Knowledge of the United States has been required; knowledge of China has often been treated as optional.

Here, Jorgensen’s career trajectory provides a fascinating example of how individual agendas and field dynamics are interwoven. His PhD thesis, on which this book is based, was focused on America. Yet his current writings have moved towards exploring the way in which China is seeking to craft ‘geolegal orders’ in areas such as the law of the sea.Footnote ³ Geopolitical power has shifted and, with that, so has the field’s scholarship. Jorgensen’s work in both areas represents a form of comparative international law, focusing on distinctive approaches to international law both within and among states, with a particular focus on great powers. His ability to do a deep vertical dive into one state in this book and then shift tacks and do a horizontal assessment across states reflects the versatility of his comparative approach.

I recommend that readers read this book as well as Jorgensen’s related body of work. He is a very promising young scholar with much to add to our understanding of great powers and their relationships. I have learnt a lot from reading his work and from the conversations we have had. I hope others feel the same way once they have read this book.

Anthea Roberts

August 2019