Rashmi Raman*
On expository exercises and their probative value in international legal scholarship
My dear friend Humphrey Sipalla requested that I publish this table where I have (with helpful inputs from my colleague Hla Yadanar Win whose contribution I gratefully acknowledge) mapped the similarities and differences between the three Advisory Opinions on climate change that are set to now generate considerable momentum in scholarship and especially in the practice of international law in the coming years.
Expository work like this is nothing if not derivative. It exists possibly as a subset of empirical research, understood as the careful mapping, comparison, and clarification of existing materials, and occupies a distinctive and indispensable place in both the practice and the academic study of international law. I have frequently prepared such mapping tools but I have never thought them fit, in and of themselves, to publish. Rather I use them as my own homework sheets on the basis of which to then prepare work in scholarship. However, in the present instance, Humphrey prevailed in requesting that they may serve a purpose as they are. Perhaps Humphrey is right.
In the context of the three recent advisory opinions on climate change issued by the International Tribunal for the Law of the Sea (ITLOS), the Inter-American Court of Human Rights (IACtHR), and the International Court of Justice (ICJ), such expository work serves as more than a descriptive exercise. It enables the articulation of the normative and doctrinal trajectories that bind and differentiate these tribunals, thereby informing advocacy, adjudication, and scholarship in ways that purely theoretical or empirical research cannot. The African Court of Human and Peoples' Rights is now tasked with a similar question, on the human rights obligations of African states in the context of climate change, put before it by the Pan African Lawyers Union (PALU), supported by civil society organisations including the African Climate Platform, Natural Justice, Resilient40, and the Environmental Lawyers Collective for Africa. In this exercise I therefore take the perspective of laying out what is already handed down to us in the three AOs thus far so as to prepare us better on what we may expect from the African Court in the coming months.
Hersch Lauterpacht, in The function of law in the international community (1933), famously underscored the interpretive labour required to transform the "raw material" of treaties, customs, and judgments into a coherent body of law. As Koskenniemi has written, Lauterpacht's modernity lies in "his constant emphasis on interpretation over substance, process over rule…" (in 'Lauterpacht: The Victorian tradition in international law,' Martti Koskenniemi, 2 European Journal of International Law 1997, 215-263). Expository research is the vehicle of that transformation. By juxtaposing the three climate advisory opinions, a researcher traces convergences, for instance, shared references to due diligence and precautionary principles, and divergences, such as the IACtHR's emphasis on intergenerational equity as a human rights obligation versus ITLOS's focus on the specificities of the marine environment. This comparative exposition does not merely catalogue differences; it systematises them into an intelligible map that practitioners can invoke when framing arguments before diverse forums and that academics can use to theorise the emergence of cross-cutting climate obligations.
Dame Rosalyn Higgins, in Problems and process (1994), argues that international law is "a continuing process of authoritative decisions" (p.2) rather than a static code. Expository research into advisory opinions directly engages that process: by clarifying the reasoning patterns of different tribunals, it illuminates how law is being authoritatively articulated and where normative gaps remain. For practitioners, such research provides a critical toolkit for forum selection and argument design, particularly in transnational issues like climate change that straddle multiple regimes. For academics increasingly interested in regime interaction / systemic integration, this allows for the careful historicisation of doctrinal shifts, offering a grounded basis for normative critique or support.
Martti Koskenniemi's landmark critical method text, From apology to utopia (1989) highlights the tension between the formal coherence and political contingency of international law. Expository work mediates that tension by showing how legal language is operationalised across institutional contexts. In comparing the climate opinions, for example, one can expose how ostensibly universal principles are inflected by institutional mandates, procedural postures, and regional priorities. This level of doctrinal exposition generates the granular understanding necessary for both critical theorising and effective lawyering.
Expository research thus cannot be relegated to the ancillary. It is the medium through which descriptive ordering becomes normative articulation, through which juridical fragments coalesce into intelligible structure. By rendering visible the intersections and fissures among the ITLOS, IACtHR, and ICJ climate opinions, such work provides the hermeneutic scaffolding upon which both praxis and theory are erected. Lauterpacht's interpretive labour, Higgins's processual account, and Koskenniemi's critical dialectic converge to affirm that expository research is not peripheral to international law's life, but constitutive of its very possibility. With broad caveats recalling Michael Reisman's warning on the assumption that the fundamental epistemic unit of legal science is the appellate opinion {W. Michael Reisman, 'International incidents: Introduction to a new genre in the study of international law,' 10 Yale Journal of International Law 1 (1984) (critiquing mainstream international legal scholarship for focusing on the fantasy world of "cases")}, here is the table:
ITLOS: https://itlos.org/fileadmin/itlos/documents/cases/31/Advisory_Opinion/C31_Adv_Op_21.05.2024_orig.pdf
IAtCHR: https://www.corteidh.or.cr/docs/opiniones/seriea_32_en.pdf
ICJ: https://www.icj-cij.org/sites/default/files/case-related/187/187-20250723-adv-01-00-en.pd
