Legal Realism School

Steven R Ratner

Content type: Encyclopedia entries

Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: July 2007

Subject(s):
Theory of international law
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.

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 A.  Background and Basic Concept
1  Legal Realism refers principally to a movement in legal scholarship that developed in the
United States in the first half of the 20th century, characterized by an overt rejection of law
as a corpus of established and logically connected rules and an embrace of law as the
output of decisions and behaviour by judges and others. Realists wanted to predict and
appraise the law empirically, as it actually emanated from courts, rather than study or
develop a set of doctrines, which they found irrelevant to understanding legal rules. In this
effort, they saw themselves as enabling the lawyer to comprehend the law in action not
merely the law on the books. In the second half of the 20th century, Legal Realism began to
make significant inroads into international legal scholarship and continues to be an
influential backdrop for a number of contemporary methodologies of international law.
Some of the historical conditions behind Legal Realism also played a role in the
development of the political science approach known as Political Realism, which has
exerted its own effects on international law. A smaller school of Legal Realism, known as
Scandinavian Realism, was a self-consciously philosophical school of thought that
conceptualized law exclusively in terms of its effect on the mind and behaviour of its
targets; but it did not have the long-lasting impact of the US movement.

2  American Legal Realism—hereinafter, unless otherwise noted, ‘Legal Realism’ or

‘Realism’—emerged in the wake of a variety of legal and political currents and movements
beginning in the latter part of the 19th century. American Pragmatism, with its rejection of
abstraction and heavy emphasis on empiricism, inspired a new sort of legal thinking—with
John Dewey in particular applying these ideas to law; moreover, currents from Europe
offering sceptical outlooks on law, including the German Free Law Movement and even
Marxism, also helped sow the seeds for the movement to come. Wesley Newcomb Hohfeld’s
breakthroughs in schematizing the meanings judges assign to legal rights also affected
some Realists. Many legal historians, and many of the key Realist thinkers themselves,
consider Oliver Wendell Holmes, in his writings as a law professor at Harvard Law School
and then as a judge of the Massachusetts Supreme Judicial Court and US Supreme Court,
as a critical forerunner to the Realists insofar as he emphasized the legislative role of the
judge and the place of non-legal factors in the judge’s rulings.

3  A more systematic critique of formalism came from Roscoe Pound of Harvard, who
attacked mechanical approaches to legal interpretation and called for a pragmatic and
sociological jurisprudence, one that actively considers the effect of legal rules upon society
and the impact of society upon the formulation of legal rules (→ Sociological Theories of
International Law). Pound called for an interdisciplinary approach, under which empirical
research would inform the development of the law so that it properly advanced the goals of
society rather than simply conformed to some logic based on free-standing doctrine.
Though Pound later sharply criticized the Realists, many of his insights formed the basis for
the Realists who would follow.

4  The Realists who taught at major American law schools, principally Yale and Columbia,
were an eclectic group of scholars: the names typically considered leaders of the movement
are Karl Llewellyn, Jerome Frank, Underhill Moore, Walter Wheeler Cook, Herman
Oliphant, Felix Cohen, Hessel Yntema, William Douglas, and Thurman Arnold. Though they
had diverse interests and scholarly—and political—agendas, Llewellyn crystallized their
common points of departure to include: a) the notion of law in flux and judicial creation of
law through conscious policy choices; b) the notion of law as instrumental, ie a means to
social ends and not an end in itself; c) the need for objective inquiry into the state of the
law, based on social science, untainted by views of what courts should do; d) a distrust of
legal rules as inaccurate predictors of what courts will do or as normative bases for what
courts should do; e) the rejection of conventional doctrinal categories of law for narrower

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 groupings that correspond to specific forms of human interaction; and f) the need for an
evaluation of law for its effects on society.

5  Realists, then, believed fundamentally that formal doctrine and sources failed to describe
the reality of law as courts made it. Instead, legal rules would be discovered through
scientific examination of the sorts of disputes that had arisen, their social context, the role
of the lawyer, the background—and even psychology—of the judges, and their views of how
decisions would affect future cases. Lawyers could ill afford to understand law otherwise;
and judges needed to accept, rather than deny, their role as policy-makers. The Realists
were thus ‘rule sceptics’ for insisting on the limited influence of formal rules in court
judgments and behaviourists for focusing on the actual behaviour of decision-makers. The
output of their scholarship was a re-examination of almost every area of the law to
demonstrate how courts were behaving and why. Realists also branched out to study the
workings of administrative bodies, which had the capacity to make law as well.

6  The Realists nonetheless pursued different scholarly agendas. For example, Oliphant and
Llewellyn developed the above concepts further by analysing the means by which judges
can manipulate different rules, principles, and precedents to reach the outcomes they
prefer on policy grounds. Moore examined in a close empirical fashion how a variety of
institutions, including police and administrative agencies, react to individual or corporate
activity and thereby represent the law in action. Cook devoted the bulk of his project to
finding a scientific framework for the study of legal decision-making, one that disdained
deriving rules based on formal logic and preferred empirically based appraisals of whether
legal rules were functioning well. Frank became the leader of the so-called ‘fact sceptics’—
which included Douglas and Arnold—for whom predicting the outcome of a court case was
impossible because the determination and evaluation of the facts are hostage to fallible
witnesses and the prejudices of judge and jury. He urged integration of psychology into the
understanding of legal decision making.

7  Though Realists were anti-formalist, they were not anti-positivist (→ Legal Positivism),
and thus their radicalism had its limits. They accepted the essential positivist premises that
what we consider as law is a matter of social fact and that lex lata and lex ferenda are
entirely distinct issues. Although Realists were sceptical about rules as accurate predictors
of judicial behaviour, and some Realists also believed that judicial decision making was
opaque and even impossible at times to understand empirically, they generally shared an
understanding of law as a social fact. Modern positivists such as HLA Hart criticized the
Realists, but the two shared a sense of the nature of law even as they often differed about
how to determine its content or what judges do or should do.

8  Legal Realism exerts a profound, even seismic impact on understandings of domestic law
today. Approaches as diverse as law and economics, critical legal studies, and feminist
jurisprudence generally acknowledge their intellectual debt to the anti-formalist assault of
the Realists, even as they differ greatly on the implication of their insights. Practising
lawyers simply take it for granted that doctrines, case-law, and restatements only go so far.

B.  Legal Realism and International Legal Scholarship

9  The leading Legal Realist scholars did not themselves, for the most part, extend their
inquiry into international law. Within international law, European scholars did not engage
with the theoretical insights of American Legal Realism. Nonetheless, a number of
important European scholars in the first part of the 20th century adopted similar anti-
formalist premises in their efforts to modernize international law to reflect what they
regarded as new realities. Among these were key exponents of sociological jurisprudence
such as Max Huber and Georges Scelle—who frequently identified himself as a realist—and
those with more ambitious goals of reform such as Alejandro Alvarez and Nicolas Politis.

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 Later in the 20th century, Charles de Visscher’s vision of law in the service of human needs,
his emphasis on the need for careful empirical work to derive rules, and the centrality of
power to an understanding of the evolution and potential for international law offer up
some of the same antiformalist ideas as the Realists, though without attribution to their
work.

10  The integration of Legal Realism into international law would fall principally to a group
of US-based scholars, with some additional contributions from one Danish scholar.

1.  McDougal, Lasswell, and the Policy-Oriented Approach

11  Myres McDougal was the first leading scholar to apply the insights of Legal Realism,
many of them from his colleagues at Yale Law School, to the international realm. Before
McDougal, Frederick Sherwin Dunn’s pathbreaking empirical work in the 1930s on
diplomatic protection seems influenced by the behaviouralism and rule scepticism of the
Realists. Working with his colleague, the political scientist Harold Lasswell, McDougal
developed a theory about international law that viewed law as a process of authoritative—
legitimate—and controlling—effective—decisions that result as various actors make and
respond to competing claims and advance their policy goals. They rejected classic
international law’s focus on identifying legal rules as stale and irrelevant, pointing out that
rules did not simply exist in vacuo and apply themselves. Rather, various global actors
consciously made choices about which rules to apply in specific contexts based on their
policy preferences. They referred to their model as a policy-oriented approach, though
others simply called it the New Haven School.

12  In their model, scholars would need to identify the full range of participants in the legal
decision making process, which could include States—all or simply groupings of them—
international organizations (→ International Organizations or Institutions, History of), and
non-State actors; their perspectives; the arenas they used for presenting claims; their
material and other bases of power; their diplomatic, military, and other strategies; and the
outcomes and effects of the decisions. They then broke down this process into the
sequential phases of intelligence-gathering, promotion of policy, prescription of law,
invocation of law, application of law, termination of law, and appraisal of law by the relevant
participants. Under this view, for example, the traditional notion of ‘sources’ of
international law—which suggested that the scholar need only locate a particular treaty or
description of custom to identify the law—was replaced with a view of the prescription of
law as a process involving numerous actors and, in the end, not at all determinative of how
those actors would actually invoke and apply the law in concrete situations. Moreover,
because law served as an instrument of policy, it was important to identify the values policy-
makers and their lawyers would seek to maximize. Lasswell identified eight such values at a
somewhat high level of abstraction: security, wealth, respect, skill, enlightenment, well-
being, rectitude, and affection.

13  Of particular import for scholars was McDougal’s and Lasswell’s elaboration of the
components of a more comprehensive form of legal analysis than that entailed in traditional
approaches. Thus, the policy-oriented approach requires the analyst or policy-maker first to
engage in a process of self-scrutiny to identify his or her own observational standpoint—
including potential biases based on life experiences—and then correctly to delimit the
proper focus of inquiry. Then, those examining the problem should perform five so-called
intellectual tasks: the clarification of their own goals; the description of past trends of
decision—the traditionalist’s meaning of lex lata; the political, economic, and other factors
that conditioned those past decisions; the projection of future trends of decision-making;
and the formulation of specific alternatives, including new rules and institutions, to advance
policy goals. Over time, the policy-oriented school came to identify two particular
overriding policy goals for international law. One was minimum public order, or the

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 resolution of competing claims through non-coercive means as emphasized in the → United
Nations Charter. The other was optimum public order, or the advancement of human dignity
globally through maximization and equitable distribution of wealth, minimal guarantees of
respect and well-being, and other welfare-enhancing allocations of the eight values noted
above.

14  Armed with this framework, McDougal and his colleagues examined numerous
substantive areas of international law, including the use of force (→ Use of Force,
Prohibition of), the law of → treaties, the → law of the sea, the law of → outer space, nuclear
testing (→ Nuclear Tests Cases), the powers of the United Nations Security Council
(→ United Nations, Security Council), → recognition, and → human rights. Each study
involved a factually intensive study of the behaviour of the relevant actors, including
governments, → non-governmental organizations, corporations, and international
organizations; conclusions about the direction of the law; comparison of their own findings
with the more formal rules that traditionalists asserted as part of doctrine; and proposals
for new rules or processes to advance the values of the authors. Beyond these international
law tomes, McDougal and Lasswell sought to reform the entire American law school
curriculum in the hope that students would understand law with the benefit of policy
sciences and become better citizen-policy-makers.

15  McDougal thus shared most of the main attributes of Legal Realism noted above, in
particular its anti-formalist emphasis, rule scepticism, rejection of formal sources in favour
of social context, fascination with interdisciplinarity and social scientific inquiry, and
acceptance of the legal decision maker as policy-maker. Yet his approach nonetheless
rejected or at least moved beyond Legal Realism, not only in its global emphasis, but in
other ways: in eschewing a focus on courts as the principal loci of decision-making, a
necessary step in light of the absence of compulsory adjudication in international law and
the marginal role of international courts in law-making; in rejecting the moral agnosticism
in some Realist accounts by integrating community values into legal analysis; in replacing
Realism’s search for a rule with a description of a process; and on emphasizing power
overtly as a criterion—along with authority—for law. Law became, for McDougal,
fundamentally a process for identifying and securing certain community values, not a set of
rules to be understood and predicted from examining a multitude of empirical evidence.

16  McDougal’s approach garnered critics from within domestic Legal Realism and from
other areas of international legal scholarship. Critics noted that the number of factors
brought into their approach made legal decision making indistinguishable from broader
social processes, depriving it of an essential legal character; that it viewed law as
constantly changing and thus hindered the lawyer’s job of identifying legal rules so as to
inform or constrain policy-makers; that it betrayed Legal Realism’s distinction between the
is and the ought and that teaching students a science of policy-making was irrelevant,
futile, or both. McDougal himself also faced strong attacks, both in the US and abroad, for
his use of his methodology to defend various US foreign policy goals, in particular with
regard to the lawfulness of nuclear testing and the Vietnam War, though others influenced
by his work reached starkly different conclusions (→ Foreign Policy, Influence of Legal
Considerations upon).

17  Although McDougal’s new methodology did not transform the law school curriculum as
he sought, the basic premises of his approach influenced a broad range of international
lawyers educated in the US or by McDougal’s former students throughout the world. Their
vision of international law that distinguishes between rules and operations, emphasizes law
as a process for resolving competing claims, scrutinizes that process for the extent to which
it is both legitimate and effective, and sees law in the service of specific policy ends owes its
pedigree to McDougal and his associates. These fundamental points originate in the

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 Realists, but McDougal was the first to show their promise for challenging the traditional
methodology of international law manifested in European formalism.

2.  Beyond the Policy-Oriented Approach

18  Legal Realism generally altered the course of legal scholarship in the US through its
anti-formalist method. Thus, even US-based international law scholars voicing a lack of
sympathy for McDougal’s specific schema saw the necessity of examining the practical
impact of rules upon decision-makers and the ways in which new rules might advance
certain values (see paras 28–30 below). Moreover, Legal Realism’s embrace of insights from
fields outside law laid the groundwork for interdisciplinary approaches that scholars have
applied to international law since the 1980s, including feminist jurisprudence (→ Feminism,
Approach to International Law), law and economics, critical legal studies, rational choice
theory, and international relations theories.

19  At the same time, although many scholars outside the US have embraced some of the
insights of Legal Realism, there still remains somewhat of a difference in perspectives
between US-trained legal scholars and others as a result of the pervasive influence of Legal
Realism in the US academy. Without oversimplifying the distinction, it seems that US-
trained or US-based scholars, far more than others, see their task as going beyond
analysing the content or sources of legal rules to explore their legitimacy and effectiveness,
and are thus more open to examining the fairness of the prescription and application
process, the underlying motivations for various rules, the role of power in the making and
enforcement of law, actual compliance patterns, and the real-world consequences of those
rules for the behaviour of global actors. This perspective has led to accusations by
European academics that American legal scholarship is somehow too much a handmaiden
of policy, too pragmatic and unbound by the formal sources of law, too willing to endorse a
concept of law in which power trumps legal rules, too interdisciplinary, and, as a result, too
prone to advance an American agenda. For their part, many American international law
scholars—including this author—reject any connection between an embrace of the insights
of Legal Realism and a particular political posture, criticize the dominant European
approach for overemphasis on doctrine for its own sake, and point out that a more
contextual approach strengthens appraisals and critiques of international law.

C.  Scandinavian Legal Realism

20  Scandinavian Legal Realism shared the anti-formalism of its American namesake, but
little else about it. The key scholars in the school, Axel Hagerström, Anders Lundstedt, Karl
Olivecrona, and Alf Ross, were influenced by logical positivism’s view that only scientifically
or mathematically verifiable statements, and not ethical or metaphysical statements, have
meaning or truth. They saw legal rules as forces that compelled various forms of human
behaviour, and that a legal obligation existed only to the extent a person felt it as such. Law
could be understood only in terms of its cause and effect on human behaviour—its
internalization into the psychology of decision-makers and targets—and their aim was to
purge the study and application of law of meaningless metaphysical notions. Lundstedt built
on Hagerström’s work to launch a full-scale assault on all of international law, labelling it
‘an empty nothing’ (at 177) based on superstition. For him, the absence in international life
of rules created by a law-maker and consistently enforced by an impartial judge made a
mockery of the idea of any international community or law of nations; indeed, talk of
international legal rights was positively dangerous as force alone governed inter-State
relations.

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 21  Ross was unwilling to take the Scandinavian tradition this far. He differed from the
founders of the school in his willingness to look beyond the feelings of those who used the
legal rules and developed the idea that legal terms—obligation, right, contract—are
shorthand terms for descriptions of how people react in certain situations. He also took on
the task of understanding how judges interpret the law and thus shared some of the
scholarly agenda of the American Realists. Yet unlike the Americans, Ross questioned
positivism’s conception of law generally and the dominant view that international law is
derived solely from the → consent of States.

22  In his influential Textbook of International Law of 1947 he argued that international law
viewed as the law of inter-State relations was defined in a circular manner, with the → State
defined in terms of its → sovereignty and sovereignty defined in terms of international law
itself. To correct this circularity, he saw international law as a law of self-governing
communities and noted that the world included communities besides States. He objected to
a conception of sovereignty as a fixed notion that guarantees a certain liberty of State
conduct and thereby limits the scope of international law, a position now widely accepted
among international lawyers.

23  From his starting point that the validity of law is a manifestation of socio-psychological
facts rather than a function of certain metaphysical criteria, he viewed legal sources as
simply those factors that motivate judges to decide cases certain ways. While accepting that
judges were influenced by consent-based sources such as treaties and custom, he, like the
American Legal Realists, thought that they were mostly motivated by a variety of
spontaneous free factors in their role as ‘mouthpiece of the community’ (at 80–82). And like
the Americans, he saw judges as creating, rather than merely applying, international law.
Like McDougal, he also believed that the political power differentials between States
needed to be taken into account in understanding international law. At the same time,
despite Ross’s broad attacks on formalism and positivism in international law, his detailed
analyses of specific international issues tended to follow a traditional approach and lacked
the innovations in methodology of McDougal and his associates.

D.  Legal Realism and Political Realism

24  The mid-20th century not only marked the rise in Legal Realism as a way of
understanding law, but also saw the development of an approach within political science—
indeed, within the new field of international relations (→ International Relations, Principal
Theories)—that would have strong views about law and that would alter international law’s
view of itself. Political realism posits that States interact on the global plane with their
exogenously determined national self-interests at heart and that the results of those
interactions depend principally, if not exclusively, on each State’s power—political,
economic, or military. In such a view, international morality, law, and institutions play a
minimal role. Political realism was a response to the catastrophes of the inter-war period
and World War II and received its most influential introduction in EH Carr’s The Twenty
Years Crisis of 1939 (→ History of International Law, World War I to World War II). Carr and
his successors blamed that series of disasters in part on an attempt to construct an ideal
world order based on international law that did not properly understand the way States
actually interact. In the future, policymakers would need to act based on an acceptance of
the anarchical state of the international system where State power counts most.

25  Political realism and Legal Realism intersected most tellingly in the person of Hans
Morgenthau, another founder of political realism. Morgenthau began his career as an
international lawyer in Germany, but as he observed that the treaties and custom of the
inter-war period, such as the → Kellogg-Briand Pact (1928), often bore no relation to the
way States behaved, he came to criticize classic international law in a manner influenced by

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 and similar to the Legal Realists. He shared Realists’ views insofar as his criticism of the
classic tradition in international law was largely antiformalist, emphasizing the political and
social context of law-making and law enforcement rather than documents and doctrines. In
an influential article published during World War II, he called for a functionalist approach to
international law that in many ways resembled the policy-oriented school that would
emerge in McDougal’s work.

26  Despite their shared views about the inseparability of law from politics, power, and
social process, Realist international lawyers and political realists parted ways after World
War II. The former still saw a prominent place for norms in governing inter-State relations
and the latter became much more sceptical about that enterprise in light of the war. Thus,
in 1948, when Morgenthau published the first edition of his highly influential Politics
Among Nations, although he defended the existence and effectiveness of international law
in regulating many issues, he judged it feeble regarding the most important power
struggles of the day. Writing with an appreciation of international law that only someone
from within the field could have, he argued that the provisions of treaties often did not
correspond to rules of law that States accepted; the absence of compulsory jurisdiction
made international courts weak; and enforcement was decentralized or, in the case of the
Security Council, compromised by the terms of the Charter (→ United Nations Charter,
History of). He later wrote that international law could be effective only where there was a
community of interests and a balance of power, noting that Oppenheim himself had
recognized the importance of the latter in the early editions of his treatise. From this
starting point, Morgenthau devoted his energies to describing international politics as
dominated by power and whose problems would be solved by diplomats accommodating
political interests, not lawyers or judges making or deciding legal claims. His works came to
define both international relations as a field and the realist vision for it.

27  Other political realists, so-called structural realists, went further than Morgenthau,
entirely rejecting any place for morality and law in the behaviour of States, a position that
Morgenthau would have found quite unrealistic. By the 1960s, the rift between
international law and international relations was sizeable, with the latter particularly harsh
in criticizing international lawyers for failing to heed the lessons from the war and clinging
to a utopian vision of inter-State relations. Political realism struck many international law
scholars, particularly in Europe, as simply hostile to law and not worthy of engagement.
Thus, political realism did not end the tradition of European formalism; each tended to
regard the other as irrelevant.

28  Yet many international lawyers did not ignore the claims of the political realists,
whether out of acceptance of some of realism’s claims or simply because realism’s great
currency in policy-making circles during the → Cold War (1947–91) threatened the
relevance of the project of international law. Thus, the policy-oriented school discussed
above—whose anti-formalist roots in American Legal Realism made it naturally sympathetic
to the anti-utopian assumptions of the political realists—could claim that it treated power
seriously by insisting that law needed to reflect not just a legitimate decision-making
process—authority—but also mechanisms for ensuring compliance—control. Those
mechanisms would reflect the interests and capabilities of States able to enforce the norms.
Law and power were, to McDougal and his colleagues, not antipodes, but co-present. They
also believed that the political power of the US could be used to advance a global public
order governed by international law and so did not see international law as opposed to US
interests and power. Beyond this school, other scholars, whether influenced directly by
World War II or by the political realists, took explicit account of the balance of power so
central to political realism—eg, the Cold War—without succumbing to the complete

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 scepticism of the political realists. Notable among these scholars were Georg
Schwarzenberger and Julius Stone.

29  By the 1960s, another strand of thinking in American legal circles, the legal process
approach developed at Harvard Law School by Henry Hart and Albert Sacks (→ Legal
Process School), began to influence international legal scholarship as well, and in a way
that would also respond to the challenges of the political realists. Abram Chayes, Charles
Ehrlich, and Andreas Lowenfeld sought to prove that, far from being irrelevant to State
decision-making and international politics, international law did indeed influence and
constrain political decision-makers. International law, for instance, could serve to take
certain policy options off the table or channel decision-making toward certain outcomes. In
a series of case studies, including Chayes’ own account of international law during the
Cuban Missile Crisis when he was State Department Legal Adviser, they sought to rebut
political realists as a descriptive matter and emphasize the utility of international law as a
normative matter. Another group of scholars at Columbia Law School, notably Wolfgang
Friedmann, Oscar Schachter, and Louis Henkin, similarly internalized the political realist
critique by orienting their work toward demonstrating how international law could facilitate
co-operation among diverse States pursuing national interests. Many political realists
responded that this work did not demonstrate the independent power of legal norms but
only their flexibility and ultimate irrelevance.

30  By the 1970s and 1980s, however, political realism itself had itself begun to accept that
norms played a role in State behaviour—albeit often refraining from using the term
international law. These political scientists, often referred to as institutionalists, saw norms
as affecting State incentives by facilitating co-operation in a number of substantive areas.
Such collaboration could lead to the creation of international regimes composed of norms,
institutions, and decision-making processes that govern or at least have a major influence
over areas of international conduct. By the 1980s, realism had become increasingly
challenged by other political scientists, such as those in the constructivist school who
envision State identities as endogenous variables, constructed by international norms,
rather than exogenous variables that determine the content of those norms.

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A Ross A Textbook of International Law: General Part (Longman London 1947).
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.
Subscriber: Fundacao Getulio Vargas (FGV); date: 26 July 2020