European International Law Traditions [1st ed.] 9783030520274, 9783030520281

Table of contents :
Front Matter ....Pages i-viii
What Are and to What Avail Do We Study European International Law Traditions? (Peter Hilpold)....Pages 1-17
The Concept of International Law: The German Perspective (Christian Tomuschat)....Pages 19-59
The ‘Austrian School of International Law’: The Influence of Austrian International Lawyers on the Formation of the Present International Legal Order (Heribert Franz Koeck)....Pages 61-95
The Concept of International Law: The Italian Perspective (Carlo Focarelli)....Pages 97-136
The French Tradition of International Law (Andrea Hamann)....Pages 137-189
British Contributions to Public International Law (Michael Wood)....Pages 191-215
Exploring Belgian and Dutch “Traditions” in International Law (Jan Wouters, Nina Pineau)....Pages 217-244
International Law from a Nordic Perspective (Jakob v. H. Holtermann, Astrid Kjeldgaard-Pedersen)....Pages 245-259
The Russian Concept of International Law as Imperial Legacy (Lauri Mälksoo)....Pages 261-277
International Adjudication Under Particular Consideration of International Criminal Justice: The German Contribution (Stefanie Bock)....Pages 279-303
German and European Ordo-Liberalism and Constitutionalism in the Postwar Development of International Economic Law (Ernst-Ulrich Petersmann)....Pages 305-332
Conclusions (Peter Hilpold)....Pages 333-337

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Peter Hilpold   Editor

European International Law Traditions

European International Law Traditions

Peter Hilpold Editor

European International Law Traditions

Editor Peter Hilpold Italian Law University of Innsbruck Innsbruck, Austria

ISBN 978-3-030-52027-4 ISBN 978-3-030-52028-1 https://doi.org/10.1007/978-3-030-52028-1

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

As is well-known, Hersch Lauterpacht praised International Law as “the only branch of law containing identical rules administered as such by the courts of all nations”.1 In more recent times, David Kennedy voiced the opinion that International Law is “different in different places”.2 Many international lawyers might already intuitively state that there is truth in both propositions. And if that is the case, if we need on the one hand a common legal order but on the other hand we have to admit that there are different understandings and interpretations when these norms are applied, then it might be interesting to bring light into this conundrum. At the same time, if we accept that the common language of international law is based on a rich diversity of different national perspectives, such an investigation can unearth inspiring insights into the cultural wealth on which these different approaches are based. Confronted both with the German (Austrian) and the Roman (Italian) legal tradition from the very beginnings of my legal education, I noticed from an early stage on the many differences in the way International Law issues are addressed in different European countries. In the last years, in order to shed more light on this issue which I found so enthralling, I organized several conferences at the University of Innsbruck with renowned international lawyers. It took some time to obtain the papers and therefore the whole period of this publication project lasted longer than expected but I believe that the passage of some years had also the advantage that we could repeatedly repass our writings and I hope that thereby the outcome gained additional quality. A project of this dimension could not have been carried through without the help of many colleagues and friends. I would like to thank, first of all, Professor Giuseppe

Hersch Lauterpacht, “Decisions of Municipal Courts as a Source of International Law” (1929), 10 Brit.YB Int.L. 65 95. 2 David Kennedy, “The Disciplines of International Law and Policy” (2008), 12 Leiden J. Int’l L. 17. 1

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Nesi from the University of Trento with whom I have organized several conferences and one of these conferences regarded also the issue of “European International Law traditions”. Together with Professor Nesi, I am presently preparing a further book on “Teaching International Law” which in many ways will offer an opportunity to continue this discussion on the pedagogical level. For the next years also, a second edition of this book on “European International Law Traditions”, enlarged with further contributions, several colleagues are still working on, is planned. Finally, I would like to express my gratitude to the University of Innsbruck, the Merlin-Stiftung in Liechtenstein and the Autonomous Region Trentino-Südtirol for subsidizing the publication of this book. Innsbruck, Austria November 2020

Peter Hilpold

Contents

What Are and to What Avail Do We Study European International Law Traditions? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Peter Hilpold The Concept of International Law: The German Perspective . . . . . . . . . Christian Tomuschat The ‘Austrian School of International Law’: The Influence of Austrian International Lawyers on the Formation of the Present International Legal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Heribert Franz Koeck The Concept of International Law: The Italian Perspective . . . . . . . . . . Carlo Focarelli

1 19

61 97

The French Tradition of International Law . . . . . . . . . . . . . . . . . . . . . . 137 Andrea Hamann British Contributions to Public International Law . . . . . . . . . . . . . . . . . 191 Michael Wood Exploring Belgian and Dutch “Traditions” in International Law . . . . . . 217 Jan Wouters and Nina Pineau International Law from a Nordic Perspective . . . . . . . . . . . . . . . . . . . . . 245 Jakob v. H. Holtermann and Astrid Kjeldgaard-Pedersen The Russian Concept of International Law as Imperial Legacy . . . . . . . 261 Lauri Mälksoo International Adjudication Under Particular Consideration of International Criminal Justice: The German Contribution . . . . . . . . . 279 Stefanie Bock

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German and European Ordo-Liberalism and Constitutionalism in the Postwar Development of International Economic Law . . . . . . . . . 305 Ernst-Ulrich Petersmann Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 Peter Hilpold

What Are and to What Avail Do We Study European International Law Traditions? Peter Hilpold

1 Some Definitions Discussions about “European International Law Traditions” have become more common in the last years even though still today many international lawyers might feel, in a first moment, uneasy with this concept. Many “traditional” international lawyers might be of the opinion that such a perspective could enter into conflict with the Universalist vocation or mission of modern international lawyers, and to some it might even call to mind long-overcome struggles and ambitions, politically incorrect ideas and ideologies. We have, therefore, first of all, to ask whether it is correct to speak about “Legal Traditions”.1 And what is “European”? What is “International”? And above all, what is a “Tradition”? Do “traditions” have any place at all in modern international law doctrine otherwise so eager to keep up with the most advanced legal doctrine or even to represent its avant-garde? If we accept the concept of “tradition”, do we have one or more of such traditions? And if we opine for the latter, in which relationship do they stand reciprocally? It becomes immediately evident that this ramification of the discussion leads us to the issue of “Comparative International Law”, a field of academic research that holds considerable promise notwithstanding continuing (although

The whole discussion about “Legal Traditions” was strongly influenced by the ground-breaking works by Patrick Glenn. See in particular Patrick Glenn, Legal Traditions of the World (a book that was received in academia both with high praise and sharp criticism, 2nd edition, Oxford University Press 2006). See Thomas Duve, ‘Legal traditions: A dialogue between comparative law and comparative legal history’ (2018) 6 Comparative Legal History 20. 1

P. Hilpold (*) University of Innsbruck, Innsbruck, Austria e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 P. Hilpold (ed.), European International Law Traditions, https://doi.org/10.1007/978-3-030-52028-1_1

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diminishing) opposition against its foundations. This introductory text will come back repeatedly to the subject of comparative international law as this branch of law is surely of pivotal importance for any inquiry into international law traditions. As to the “Europeanness” of this approach, it is well known how much European lawyers (and also politicians) are struggling with how to define and to circumscribe this concept. It has been said that attempts could be made to interpret this term, for example in a geographic, political, communal, economic, ethno-religious, essentialist, semantic or philosophical sense, but none of these approaches can be considered as exhaustive or fully convincing.2 Recently it has instead been suggested not to look for fully fledged Europeanness, a condition probably too demanding to prove but for “traces” of such Europeanness reflecting the cultural origin of the respective authors.3 Defined this way, Europeanness becomes, of course, a rather subjective characteristic, where the “critical mass” starting with which Europeanness can be seen as given lies, to a considerable extent, in the eye of the beholder. Furthermore, such an approach will lead to a situation where Europeanness will become in future ever more difficult to discern and to distinguish from, say, “Americanness”, in particular in view of the fact that academic institutions are now cooperating far more closely than was the case only a few decades ago.4 As to the element of “Internationality”, again misunderstandings might arise in a global discussion. In fact, as has been evidenced in detail by David Kennedy, in the United States the concept of international law has been delimitated quite differently than in Europe, with “blurry boundaries”, for example, between public international law and private international law.5 In Europe, traditionally, however, this was not a

2 See Outi Korhonen, ‘Innovative International Law Approaches and the European Condition’ in José María Beneyto/David Kennedy (eds.), New Approaches to International Law (T.M.C. Asser Press, The Hague, Netherlands, 2012). 3 Ibid., 210 and 220. Korhonen describes this “identity-defining” and “identity-ascribing” process as follows:

If we relax our attitude, we could perhaps summarize that a range of innovative disciplinary writings from Kennedy to Marks and Chinkin, from Koskenniemi to Hoffmann, from Simpson and Simma to Allot, and others is more or less ‘European’. If we dissect the texts, idioms and subtexts, we find traces of the European, which we cannot, however, in any way determine or fix without inserting the personal-political of the specific authors and their audiences into the ‘algorithms’ - the cultural geography of origin being one lesser figure among them. Ibid., 220. 4 In this context we would ask the following question: A Professor teaching, say, both in Paris as at the New York University, starting from which moment does he switch from being European to becoming American? Or can he be both and do we then have to distinguish between single publications or even single parts of his publications? See in this context also Michael Wood, ‘A European Vision of International Law: For What Purpose?’ in: Hélène Ruiz Fabri et al. (eds.), Select Proceedings of the European Society of International Law (vol. I, 151-163 who speaks of “Europeanized Americans” and “Americanized Europeans” (at 157) 2008). 5 See David Kennedy, ‘The Disciplines of International Law and Policy’ (1999) 12 Leiden Journal of International Law, 19. This problem becomes further accentuated in the “Invisible College of

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real problem as there a widely uniform concept of “Public International Law” both in practice and in theory applies.6 This may change in future as international law theory more and more shifts its focus from interstate relations to the internal level, as “Global Administrative Law” (GAL) more and more sets rules and standards for situations that not long ago were exclusively part of the national “domaine réservé”. Also the concept of “legal traditions” needs some further clarification. In the past, comparative analysis was prevailingly undertaken with reference to “legal families”, a concept still in use but in decline as it is closely associated with the idea of legal nationalism.7 Instead, the concept of “legal traditions” is looking beyond these dated, static dividing line paying tribute also to influences attributable to a “transnational law”8 that is taking more and more shape. For a definition of this concept, reference is often made to John Henry Merryman’s “The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America” (1969, fourth edition 2018). According to this author, a legal tradition is: a set of deeply rooted, historically conditional attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of the legal system, and about the way law is or should be made, applied, studied, perfected, and taught.9

Two elements seem to be pivotal in this definition: legal traditions are “deeply rooted attitudes”, and they are “historically conditional”. In deference to the first element, the contributions to this book try to explain existing national legal traditions as the product of the broader cultural environment where they have developed and from which they are the offspring. What may appear to be awkward in these legal traditions if examined in an isolated manner becomes far better understandable if looked at as an element of a broader cultural reality. Similar considerations apply as to the second element mentioned: considering the historical development of legal provisions presently in force may open up a perspective that allows us to understand legal settings that might otherwise appear incomprehensible, arbitrary and perhaps even pointless or nonsensical.

International Lawyers”, so famously portrayed by Oscar Schachter. See Oscar Schachter, ‘The Invisible College of International Lawyers’ (1977) 72 Nw.U.L. Rev. 217. 6 This holds true even though the actual teaching obligations of International Law Professors vary considerably. For example, in Italy International Law Professors have to teach Public International Law and Private International Law. In Germany Public International Law is regularly taught together with (German) Public Law and European Law. 7 See H. Patrick Glenn, ‘Comparative Legal Families and Comparative Legal Traditions’ in: Mathias Reimann/Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (2006) 424. 8 For the foundations of this approach see Philip C. Jessup, Transnational Law (1956). 9 John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (2018) 2.

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It has been said that legal traditions are the “historical underpinnings of modern law”,10 where modern law is not only the last sequence of a historical development, but according to Harold J. Berman and Edmund Burke, modernity and history are rather interwoven in a continuous dialogue and a “partnership of generations”.11 Against these considerations, it could be remarked that international law is ex definitione universal, a norm system created by the state community and for the state community. Consequently, it might be counterintuitive and counterproductive to look for a genealogical pedigree of single norms. Might looking back constitute a step backwards in the legal development? Might a “re-nationalization” of international law constitute a further contribution to the much-lamented fragmentation of international law,12 a road to the tower of Babylon where the common language so intensively propagated and cultivated in the past would again be exposed to the peril of going lost or at least be weakened so that communication across national borders could be further complicated? This project was premised on the proposition that such worries are not justified and that, on the contrary, a contribution could be given for a better understanding of international law, both with regard to its main elements and in the international dialogue about its core characteristics.13 As it is often said, the main purpose of any comparative study of law is to know and to understand one’s own legal order better.14 A similar, somewhat modified proposition has been asserted as to the relationship between national law and international law. According to William Butler, comparative studies of one or more legal systems or families of legal systems “can contribute an indispensable perspective to our understanding of international law”.15 I would specify that this holds particularly true as to our national understanding of international law and as to the differences in the way we approach international law issues. And we have to consider that different parts of the national legal order are differently related to international law. While some elements of national legal orders are (or have been in the past) largely independent from international law (this is the case—or has been the

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See Thomas Duve (supra, note 1), 21. See in this sense Harold J. Berman, ‘The Western Legal Tradition in a Millennial Perspective: Past and Future’ (2000) 60 La. L. Rev. 740. Referring again to Edmund Burke, Reflections on the Revolution in France, 1790. See also Thomas Duve (supra, note 1), 22. 12 Fragmentation of International Law: Difficulties from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (ILC), finalized by Martti Koskenniemi, UN Doc. A/CN.4/L/682 (2006). 13 As it was aptly said by Harold J. Berman: “We need a long time-perspective in order to understand the long-term character of the fundamental changes that are now taking place and in order to anticipate a long-term future.” Supra, 11, 741. And further: “[. . .]what we remember of the past is based on our anticipations of the future, and our anticipations of the future are based on our memories of the past.” Ibid., 763. 14 See Aalt Willem Heringa, Constitutions Compared (5th ed., 2019) 1. 15 See William E. Butler, International Law in Comparative Perspective (1980) 2. 11

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case until recently—for large parts of administrative law),16 others are very close to international law (such as the constitutional provision on the incorporation of international law or the broad field of human rights provisions). The closer national provisions are to international law, the more a comparison of the relevant provisions will tell us about what our understanding of international law is. But also those provisions of national law that are not immediately related to international law can give us, in a comparative perspective, useful hints on how international law issues are approached by the various states as thereby general visions of legal theory and legal philosophy emerge that apply to a legal order as a whole. And legal orders comprise, according to the monist approach, both national law and international law—they merge to a single legal order amenable to a unified act of interpretation.

2 The European Perspective Let us now turn closer to the ends of this specific project in a narrower sense. But before we enter into a more detailed exposition about what this project is, let us first say some words about what it is not. It is not intended here to engage in a broader discussion about the role that European international law has in the present international legal order or had there in the past.17 Even less, it is intended to attribute a sort of moral pre-eminence to European international law, however it is to be defined. As is well known, the relevant discussion, whether a European international law exists at all and what its influence on universal international law is, is often conducted in a rather acrimonious tone with some authors sustaining (or at least implicitly assuming) that universal international law has been prevailingly shaped by

On the subject of the “GAL” (Global-Administrative Law)-studies see Sabino Cassese (ed.), Research Handbook of Global Administrative Law (Cheltenham 2016). 17 See Arnulf Becker-Lorca, ‘Eurocentrism in the History of International Law’ in Bardo Fassbender/Anne Peters (eds.), The Oxford Handbook of the History of International Law (2012) 1034-1057. See also Hélène Ruiz Fabri, ‘Reflections on the Necessity of Regional Approaches to International Law Through the Prism of the European Example: Neither Yes nor No, Neither Black nor White’ (2011) 1 Asian Journal of International Law 84: “[. . .] Europe’s past or that of a certain number of European countries being what it is, the issue [of an European approach to International Law] quickly sparks off the suspicion that the aim is to reflect on the device for a renewed imperialism.” Ibid., p. 84. 16

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European (Western) international law,18 while others are denying such an influence or are contesting the existence of such a European international law altogether.19 The political agenda often associated with these propositions further compounds the problem and makes it difficult to find a standpoint that would generally qualify as neutral and objective. According to the position taken here, it cannot be denied that the formation of international law has been predominantly influenced by European (Western) states, and still today concepts of European origin occupy a prominent place in universal international law. Nonetheless, it has also to be pointed out that for a long time, the formation of international law has become a truly global project.20 Even concepts that once have been of European origin have been taken up, transformed and further developed in other regions, only to return to Europe as part of universal international law with a largely modified meaning. The formation of customary international law has necessarily to consider universal practice.21 As to multilateral treaties in the UN era, they are typically negotiated in global conferences or are elaborated within the International Law Commission, and thereby the global community becomes institutionally involved.22 Thus, while European (and further Western) countries have provided—to a considerable extent—structure and terms for the language in which international law is spoken and developed, its content is formed in a comprehensive global dialogue. See, for example, Colin B. Picker, ‘International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction’ (2008) 41 VandJTransnatlL 1083: “[. . .] it is to say that the dominant character of modern international law is Western”. Ibid., 1099.’ Or, a few years earlier, Martti Koskenniemi, ‘International Law in Europe: Between Traditional and Renewal’ (2005) 16 EJIL 113: “One can do international law better or worse, but the criteria of excellence have been set by Europeans: Cicero and Roman Law, Catholic intellectuals, Vitoria in the sixteenth or Louis le Fur in the twentieth century, protestant activists, Hugo de Groot in the seventeenth, or Johann Caspar Bluntschli in the nineteenth century.” Ibid., 114. 19 See Alexander Orakhelashvili, ‘The Idea of European International Law’ (2006) 17 EJIL 315 who relies i.a. on natural law to argue that International Law has been universal since its inception. Ibid., p. 316. While it might be true that natural law informed legal thinking since ancient times we have, however, also to consider that the effective meaning of natural law varies from region to region and from epoch to epoch. It is an illusion to think that natural law as such is universal and uniform in all details. On the other hand, as will be shown below, it can be argued that there are some basic principles that can be considered as really universal and present in all periods and times. 20 See in this context Arnulf Becker-Lorca, Mestizo International Law: A Global Intellectual History (1842-1933), (CUP: Cambridge 2014) who demonstrates how international lawyers from what was then considered to be the periphery of the Western world managed to contribute to the shaping of international norms that became thereby truly universal. Important elements of what we often consider Western norms universalized by the imperial powers in reality is therefore “mestizo law” influenced by the “periphery” long before the concept of nations had become a structural principle of International Law. 21 True, the “persistent objector” has to be considered here but this issue is, if at all, of limited practical importance. See, i.a., Patrick Dumberry, ‘Incoherent and Ineffective: The Concept of Persistent Objector Revisited’ (2010) 59 ICLQ 2010 779. 22 See on this recently Simon Chesterman et al. (eds.), The Oxford Handbook of United Nations Treaties (OUP: Oxford 2019) 23ff. 18

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This finding should not, however, obscure the view for two elements that appear to be very important for the further discussion of this book’s overarching topic: – The fact that international law is global does not exclude specific regional inputs that might remain discernible as to their original provenience over quite a long time. – Even if a rule has consolidated globally and even if its genealogical roots are gone out of sight, it might still be the case that individual states or state blocs develop an original perspective towards this rule. To a certain extent, international rules might be “re-nationalized” in the sense that a specific meaning is given to it. While such a situation is prone to lead to international controversies, the ensuing dispute might hold on for a considerable period. – And it is not excluded that a “particular” or a “regional” meaning will eventually become the prevailing one. Pursuant to these considerations, the goal of this collective writing is at the same time a modest and an ambitious one. It is modest in the sense that it does not try to isolate what is “European” in international law and subsequently endeavour to explain to what extent European international law traditions have influenced present (global) international law as a whole. Such a project would be of an enormous reach and probably even unfeasible. It remains, however, ambitious in the sense that it looks for specific national approaches towards international law that are, already for geographical reasons, at the same time European traditions. These studies are premised on the assumption that there is regularly something particular and peculiar in how single European states approach, interpret and apply international law.23 These specifics may again relate to history or culture or may be idiosyncratic for a certain national academic community.24 In any case, they determine what “(international) law in action” is, and eventually they may be conducive also to a new “(international) law in the books”. They can be addressed in different ways, and in fact, as the readers of this book will note, the authors have chosen widely diverging approaches to identify and to explain the particularities of their national legal orders’ perspective on international law. These differences are partly due to the different weight that individual European countries have on the international scene, and this weight may again diverge in a

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David Kennedy coined a simple but incise formula to give expression to this situation of different attitudes toward International Law on a worldwide scale. For him, International Law is “different in different places”. See Kennedy (n 5) 17. 24 With regard to the American vantage point see the fitting considerations by Mark W. Janis, ‘Comparative approaches to the theory of international law’ (1986) 80 ASIL 152: We do not approach international law in the same way as Americans did in 1914 or in 1861 or in 1783. Nor do we now approach international law in the same way as do other nations. The French and other Western European countries, the Soviet Union and the other Communist States, India and the other developing countries of Asia, Africa and Latin America, all have distinctive national international law traditions.

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historical perspective so that, in some cases (for example with regard to Austria), it seemed appropriate to give more space to considerations regarding a more distant past or to aspects of the academic discussion rather than to a technical exposition of governmental measures presently in force. In other cases (such as in that of Germany), both due to the relevance of this country on the international level and the academic specialization of the authors chosen, the decision was taken to address one specific material subject (international economic law, of course alongside a further general contribution on the German international law tradition) where arguably a considerable country-specific influence on the development of that area of international law had come to bear. To what end were these studies undertaken? A first impression could be that they give an account of the historic development of international law from the vantage points of different European countries. A series of names of past luminaries is thereby revived, and at least to this author it was impressive to see how relevant many of their ideas and visions still are today. But when undertaking these studies, the proposition was that there is much more that can be gleaned from such an endeavour. In fact, this could be seen as an exercise in comparative law. Dealing with international law issues in a comparative perspective may still not be very common, but, as already hinted at, the endeavours of this kind undertaken so far reveal the enormous potential lying therein.25 In fact, it cannot be denied that states are approaching international law issues in quite a different way, and this is reflected in practically all present international crises. While primary attention is thereby usually devoted to the “great players”, a closer look at the behaviour of European governments when issues with immediate repercussions on their states are at stake, for example in the field of migration or when sanctions against third countries are discussed, reveals often a sort of “European standpoint” and in numerous times also quite consistent divides also between European countries. These attitudes follow regularly a specific pattern that may also relate to a particular national international law tradition.26 A greater awareness for these traditions may render the behaviour of governments more predictable and international governance more calculable. But there is much more potential gain in looking into European international law traditions. The whole of Europe is now in a difficult process of re-assertion in a multi-polar world where Europe is losing its competitive edge due to declining economic power, its shrinking percentage of world population, the graying of its population and the inability of the European Union—and not to mention the continent as a whole—to speak with one voice or to build up at least some political weight.

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See, for example, William Butler (ed.), International Law in Comparative Perspective (1980) or Colin B. Picker (supra, note 18). 26 According to some authors (see Dana Zartner Falstrom, ‘Thought Versus Action: The Influence of Legal Tradition on French and American Approaches to International Law’ (2006) 58 Me. L. Rev. 292, cited according to Colin B. Picker (supra, note 18, 1089), legal traditions are pivotal to explain states’ legal response to international crises.

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This situation ended up in what may be called a political inferiority complex creating a self-perception of “near-irrelevance” on the international scene. A rediscovery of the many traces of Europeanness of international law might nudge Europe to come out of the corner it has manoeuvred itself into and motivate the countries of this continent to reassume more actively the dialogue with the rest of the world whose legal setting it has so extensively influenced. This influence might not always have been positive, but also Europe has learnt from these experiences in an interaction that for long has become global and equal.

3 The Single Contributions to This Book If we turn our view to the individual contributions, already the first one written by Christian Tomuschat evidences the dimension of this challenge to write about single national contributions to international law. It reveals, however, also that this challenge can be mastered and that highly interesting insights can result from such an endeavour. The author demonstrates that the German Basic Law (Grundgesetz) endorses the general rules of international law in a spirit of optimistic world solidarity, which is in strict contrast to an understanding of international law as “external state law”, a concept that German philosophers (Hegel) and legal thinkers (see Jellinek, Zorn) have predominantly contributed to develop. Tomuschat highlights Germany’s trust in international law (in strict contrast to the situation in the period between 1933 and 1945), strongly supported by the German international law academia. He ends his article with a plea for an even more active foreign policy in the service of peace, human rights and the international rule of law. Heribert Franz Köck gives a broad overview of the “Austrian School of International Law”. He again starts with the consideration that it is difficult to identify a typical national approach to international law, but he also manages to identify some fundamental contributions that Austrian legal doctrine has given to the international law doctrine as a whole. Mostly and pre-eminently, this doctrine is associated with the name of Hans Kelsen and his Vienna School of legal theory, but Professor Köck, himself an eminent representative of the modern natural law school, highlights the contributions by Alfred Verdross and his concept of justice, strongly influenced by natural law ideas, which has given a lasting impact on present-day international law. According to Köck, many basic concepts of international law, in particular as they find expression in UN law, are based on these ideas. He demonstrates that Verdross’ ideas are living on in the “Austrian School of International Law” and far beyond. The reader of Carlo Focarelli’s contribution will learn a lot of the development of Italy’s international law academia—but at the same time get acquainted with Italian literature, history and philosophy. Focarelli demonstrates how closely national legal traditions are connected with the general culture of the respective country. The lawyer who wants to become really domestic with a specific national legal tradition will have to adopt a very broad perspective and not limit his studies to legal norms and texts.

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As to the Italian manuals of the past, which in the meantime, outside Italy, might have become all but forgotten,27 it might be revealing for the reader to see how modern many of their insights are, even if they have been formulated in the nineteenth or in the early twentieth century. It suffices here to refer, for example, to Pasquale Fiore’s (1837–1914) studies on what we would call today “erga omnes obligations”. The analysis of Rolando Quadri’s (1907–1976) studies calls into mind the acts of modern superpower politicians when Focarelli cites Quadri’s underlying assumption according to which “the law is a product of the strongest who act uti universi”, but at same time he quotes Quadri as stating that “no state in the world, not even the strongest, is legisbus solutus”. As to the “literary part” of Focarelli’s contribution, he identifies in the works examined two “key Italian attitudes”: “realism” and “humanism”. Focarelli ably demonstrates that the same aspects can be identified in the attitude of Italian lawyers towards international law. Andrea Hamann undertakes a broad enquiry into the concept of “traditions in International Law” in general and in France in particular. As an academic of German provenience and full legal education in France, she is best prepared to adopt an “inside” as an “outside” perspective. She analyzes academic trends and attitudes of a country that has given so important contributions to the development of international law on both practical and theoretical levels, whose language has once been the lingua franca of international law but which, in the meantime, has lost much of its clout. On the practical level, this results from a massive shift in the power relations on the political landscape, while on the academic level this problem is also associated with the diminishing relevance of the French language on the international scene. Furthermore, also the structure of the French academia might have influenced this development. Andrea Hamann pinpoints in her contribution some of the most conspicuous traits of the French international law academia that are peculiar to this country—and nonetheless evoke associations with similar situations in other European countries.28 It has already been pointed out that the concept of “traditions of International Law” means different things to different people. It might not be surprising that those international lawyers who are particularly wary of preserving the unity of international law have the most problems with speaking about “national traditions”. The 27

But they are still cited in the dominant treatises such as Oppenheim’s International Law. This is in particular true with regard to the central importance attributed to International Law chairs in the capital, in this case Paris. While it can be said that Universities (and thereby academic institutions where International Law is taught) in all capitals of European states enjoy a somewhat privileged position, in some countries, like in France but also in Italy, this position of pre-eminence is more accentuated. Interesting comparisons can also be made with regard to the position government representatives have within the national International Law academia. While Andrea Hamann writes that in France this position is a rather prominent one, to a certain degree this is also the case in other European countries (such as in Austria where, for example in Graz, specific chairs for “practitioners” of International Law and EU Law – up to this moment coming from Ministries in Vienna - have been created. 28

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British practitioner Sir Michael Wood is one of these lawyers. He opposes any attempt to “compartmentalize” international law study and practice into “national” approaches and to imagine a “divisible college of international lawyers”. These warnings are, of course, justified, and any international lawyer who would seriously try to artificially fragment international law with the intent to advocate a national tradition perhaps retained as superior or more advanced in respect of other national traditions would commit a capital sin: he would saw the branch on which he is sitting. Needless to say, this is usually not the intent of that part of the international law academia that engages in studies on international law traditions. Wood wants to rule out any doubt in this regard, and for this reason he speaks more modestly of “British contributions” in public international law. At the end, the choice of this wording is fully in line with the overall philosophy that undergirds this research project. In fact, the basic idea is that there are some distinct national contributions to international law, some national attitudes that are distinct in respect of those of other nations, and identifying (but not necessarily emphasizing) them might contribute to a better understanding of the international law order as a whole and to devising lines of development that might identify future advancements in international law. Anybody somewhat familiar with international law as a science might have no difficulties in underwriting the empirical perception by the author that the United Kingdom has a long tradition of being the source of specifically fine and important contributions to international law studies, may they originate from native people or from academics coming to the UK for whatever reason. Wood attempts to explore what might have been the cause for such a leading role the UK is exercising in this field. He sees several reasons for British lawyers being able to contribute so strongly to this discipline, and he refers in this context, for example, to the common law training of its lawyers as this might have given way to a “strong predilection for the development of the law through decided cases and specific instances” (Robert Jennings). One further fact he refers to lies in the circumstance that many leading British academics have also been practitioners before English and international courts. Consequently, international law is taken very seriously in the UK, and thereby a notable influence is exercised on the development of international law on a global scale. By strengthening international law as such, the UK contributes to more respect for this order also by other nations. Jan Wouters and Nina Pineau have provided an overview of the Belgian and Dutch traditions in international law. And there was much to tell, already in view of the fact that the “father of International Law”, Hugo Grotius, comes from this region. The authors analyze further in their text the contributions by Gustave RolinJaequemyns, Emile de Laveleye, Edouard Descamps, Charles de Visscher, Cornelis van Bijnkershoek, Tobias Michael Carel Asser, Bert Röling, Henry Schermers, Pieter Kooijmans as well as many other also contemporary authors. How was it possible that authors of two rather small countries could exert such an important influence on the development of international law literature? Wouters and Pineau provide an interesting explanation for this: both countries have been neutral for a long period of time, and this created an atmosphere that allowed academics and

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practitioners to develop a humanist, pacifist and Universalist perspective on international law. Astrid Kjeldgaard-Pedersen and Jakob v.H. Holtermann take a square look at the “Scandinavian Perspective”. They refer to the difficulties in identifying a “Nordic approach” that should apply both to practice and to theory. At the same time, however, they evidence that talking about a “Nordic approach” has a strong aspirational value where this “mythic north” stays for a strong commitment to democracy, rule of law and the protection of human rights. In this sense, the identification of a national (or regional) legal tradition can be important not only for what it actually is but also for what it stands for in theory and imagination. The following contribution by Lauri Mälksoo on the “Russian Concept of International Law as Imperial Legacy” might meet with particular attention by this book’s readers as it concerns the approach to international law by a powerful state at the geographical margins of Europe which has stood for a long time in conflict with the Western bloc of European states and which again continues to challenge traditional Western values, for example with regard to the annexation of Crimea29 or in relation to human rights before the European Court of Human Rights. For Lauri Mälksoo, this particular attitude towards international law can be explained by Russia’s past as an empire and the deep-rooted fears by the Russian political elite that abandoning the Empire would mean abandoning Russia herself. This attitude is reflected directly by Russian academic writing as internationalists in Russia often see their main role in supporting the government in its foreign policy with legal arguments.30 The following two contributions by Stefanie Bock and Ernst-Ulrich Petersmann again turn to Germany, but they are focused, differently than the contribution by Christian Tomuschat, on a specific material subject. Stefanie Bock writes on the German contribution to the creation of international criminal justice. She shows that the highly developed German criminal justice doctrine could in fact give an outstanding contribution to the development of this field, and up to this day, important initiatives to further develop international criminal justice are coming from Germany. It can therefore be said that at least in this field a specific national legal tradition had finally exercised determinant influence on the international level.

See Peter Hilpold, ‘Ukraine, Crimea and New International Law: Balancing International Law with Arguments Drawn from History’ (2015) 14 Chinese JlL 237. 30 Lauri Mälksoo refers in context to the frank statement by O.N. Khlestov, ‘Rossiiskaya doktrina mezhdunarodnogo prava’ (2013) 58 Evraziiskii iuridicheskii zhurnal 19. For a disillusioning portray of the situation within the Russian International Law academia see also Maria Issaeva, ‘A Quarter of a Century on from the Soviet Era: Reflections on Russian Doctrinal Responses to the Annexation of Crimea’ in Wladyslav Czaplinski (ed), The Case of Crimea’s Annexation under International Law (Warsaw 2017) 155-179. She furnishes a critical picture of the Russian International Law academia characterized by the dominance of a hierarchical, closed and self-complacent academic society, elements, however, not unknown also to Western International Law academic societies. 29

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The final contribution by Ernst-Ulrich Petersmann examines what the influence was of German-speaking countries on the development of international economic law. Undoubtedly, this influence was remarkable (even though it might not have been so far-reaching as that of German criminal law doctrine on international criminal law). And there are many levels on which this influence was exercised: inside the European Union (Austria and Germany), in the European Economic Area (Liechtenstein) and in the European Free Trade Area (Switzerland). Due to their constitutional “common market” and monetary and fundamental rights protection, these countries share common traditions of supplementing (1) private and (2) public law regulations of the economy by (3) economics-driven, multilevel economic regulation (e.g. of transnational common markets, international trade and investment law); (4) multilevel administrative law (e.g. on transparency and legal accountability of international economic organizations); and (5) multilevel constitutional protection of transnational rule of law and fundamental rights of citizens (e.g. by European courts protecting common market rights and fundamental rights). The article describes regulatory challenges of Europe’s microeconomic “common market constitutions”, macroeconomic “monetary constitution” and “social market economies”, which differ from the hegemonic, interest-group-driven US neoliberalism, the mercantilist “economic security order” advocated by US President Trump in response to the geopolitical rivalry from China and the totalitarian state capitalism promoted inside China. Of course, one might find some elements of ordo-liberalism also in GATT law and in WTO law, but here the picture becomes more diffuse. What recently has been stated about the universality of international economic law proves again to be right: there are some universal elements in international economic law, but for the rest, “states want to retain control”.31 As far as Petersmann writes about a constitution of international economic law, he writes also about his own lifelong academic project. While also many others have participated in this endeavour, Professor Petersmann’s contribution in this field was surely of paramount importance.32

4 Looking Forward No doubt, it would be interesting to embark in an even more comprehensive comparative project that should consider the vast majority, if not all, of European international law traditions. We can return here to the introductory statement See in this sense Laurence Boisson de Chazournes, ‘International economic law and the quest for universality’ (2019) 32 LJIL 401, 413. 32 See also the Festschrift dedicated to Ernst-Ulrich Petersmann with a series of writings by academics from all over the globe aiming at paying tribute to the seminal contributions of the jubilee in this field: Marise Cremona, Peter Hilpold, Nikolaos Lavranos, Stefan Staiger Schneider and Andreas R. Ziegler (eds.), Reflections on the Constitutionalisation of International Economic Law (Liber Amicorum for Ernst-Ulrich Petersmann, Brill/Martinus Nijhoff: Leiden/Boston 2014). 31

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according to which the main purpose of comparative analysis in public law is to know one’s own legal order better.33 Comparing various international law traditions should provide, first of all, further insight into the national order that the reader is most acquainted with and answer the questions on how open that respective order is towards international law; what could be learnt from other orders; what the repercussions are of a greater Völkerrechtsfreundlichkeit (kindness or openness towards international law) on the national order, in particular as to the human rights guarantees; and how a national order could be improved in order to become more receptive for the dynamics of international law, which should eventually also strengthen national constitutional guarantees. And there is an additional goal that such a comparative approach should further, namely a better knowledge of international law and the strengthening of a common perspective on this order, where, at the moment, on many issues opinions widely diverge. In this sense, the contributions presented in this book are to be seen as a first step in a broader, longer lasting project. The selection of the national international law traditions integrated in this book has also to do with the fact that the project was started in Innsbruck, a place where different legal families and legal traditions interact.34 The consideration of further national perspectives can contribute to broadening the perspective. And the least that can be gained is an overview on the rich panoply of past writings in international law that might be well known within the respective legal system but widely gone lost outside it even though a closer look at these contributions might reveal a real international relevance. Writing on international law has become so rich and so dense, and it relates to so large time spans that thinking in national legal traditions might be a further tool to structure this enormous knowledge and to keep this information manageable notwithstanding the fact that the borders of these traditions are, as shown, in no way neat and clear. Nonetheless, as to the Europeanness of the approaches presented here, no doubts can exist. As pointed out in the introductory part to this chapter, to consider a national approach to be “European”, traces of “Europeanness” suffice, and they surely abound in the chapters presented here. And within these “traces of Europeanness”, we find further “traces of national legal traditions” that make these national traditions identifiable and distinguishable. They reconnect to historical legal identities, and at the same time they adumbrate possible future developments, directions towards which these orders could orient themselves, even though the ongoing European integration may make the borders between these traditions ever more blurry and at the same time the elements of “Europeanness” ever more preponderant. It shall not go unmentioned that for some, this amalgam of national 33 See also Karl-Peter Sommermann, Die Bedeutung der Rechtsvergleichung für die Fortentwicklung des staats- und Verwaltungsrechts in Europa, Die öffentliche Verwaltung (1999) 1026. 34 As might be known, at the University of Innsbruck both Austrian law as well as Italian law is taught. Furthermore, due to the closeness of Germany and Liechtenstein and the presence of many students from these countries at the University of Innsbruck, research and teaching is done also in German law and in the law of Liechtenstein.

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law, international law and European law should be taken as an example also outside the European region as it is designed, first of all, to strengthen international law.35 As already hinted at, these contributions are also to be seen as an attempt to further comparative international law. Already some decades ago, very optimistic predictions have been uttered both as to the potential lying inside this approach and as to the probability that this potential would materialize.36 Seen from hindsight, these forecasts may have been somewhat overenthusiastic, but nonetheless it appears safe to say that comparative international law is here to stay. Publications continue to appear in this field,37 and the research interest in this area is continuously growing. It has been defined as a branch of law that “entails identifying, analysing, and explaining similarities and differences in how actors in different legal systems understand, interpret, apply and approach international law”.38 This was exactly the aim of the contributions brought together in this volume. Some contributions concentrate comprehensively on international law approaches of single national legal orders; others take a more specific approach and refer to criminal law or international economic law. As to the further substantive aim of this inquiry, the basic assumption was that much was gained already by raising awareness about the many differences and similarities between the different national attitudes towards international law. As a further step, it was also tried to explain the similarities and differences previously identified. Of course, the resulting assessments will always bear a considerable amount of subjective elements, and they therefore will always tell also much about the personal approach to international law by the individual author. Nonetheless, they should at least offer a broad basis for discussion and a plethora of elements that the reader can further work on. On a whole, this project can only be seen as “research in progress”, an endeavour that should bring to light insights of the past that are often astonishingly modern and at the same time also provide tools to refine the common language of international law so that its speakers, whatever their native language is, might be strengthened in their conviction to work on a common, universal project. A publication on a subject like this, for the time being, can only be eclectic.39 Some readers might opine that he or she would have wished to read further analyses

Anne-Marie Slaughter/William Burke-White, ‘The Future of International Law is Domestic (or, The European Way of Law)’ (2006) 47 HarvIntlLJ 327. 36 See William E. Butler (supra, note 24, 2): “[. . .] I venture to suggest that comparative legal studies will increasingly come to be regarded as being as essential to the training of the international lawyer as is the study of international law itself”. This event Butler foresaw in 1980 for the future has not yet become reality. 37 See, for a recent important publication in this field, Anthea Roberts et al. (eds.), Comparative International Law, OUP: New York 2018. 38 Ibid., 14. 39 The editors of the book “Comparative International Law” (A. Roberts et al. eds., 2018) even stated that their publication was “intentionally eclectic” (at 31). 35

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about other European international law traditions. And, in fact, this publication is intended only to be a first initiative in a longer lasting project that shall, step by step, integrate further perspectives. Thus, this collection of essays is not “complete”, and neither an enlarged second or third edition will be. Nonetheless, this editor hopes that these contributions can give further insights and provide a stimulus for further discussion on comparative international law in general and on European international law traditions in the specific. As has been aptly said, tradition is weak where it is most actively discussed and inversely strong where it is unspoken of, and even unthinkable to be spoken of (E. Weil, cited by A. Hamann in this book at note 157). This paradox holds not only true from a national perspective. Also in international law, if we compare national traditions, this is not done, as some might fear, to strengthen these traditions (thereby undermining international law as a unitary system) but rather to better understand how international law operates and is being applied. Furthermore, this approach helps to identify misunderstandings and difficulties in international relations resulting from different “historically conditional attitudes” allowing thereby also to overcome these differences. These different traditions need not to be abandoned; it suffices if they are properly understood. A working system of international law does not need to be based on uniform rules of transposition and implementation. A detailed understanding of these national differences might provide the basis to better explain the universal order as a whole, to create transparency as to national barriers that need to be eradicated by amendment and to provide tools permitting an interpretative harmonization of remaining obstacles of lesser dimension. Far from fostering compartmentalization of international law, the identification of and the engagement with different international law traditions might therefore be a potent instrument to further strengthen international law as an effective, internationally accepted, recognized and obeyed legal order.

References Anthea R et al. (eds.), Comparative International Law (OUP 2018). Becker-Lorca A, ‘Eurocentrism in the History of International Law’ in Bardo Fassbender/Anne Peters (eds.), The Oxford Handbook of the History of International Law (OUP 2012) 1034. Becker-Lorca A, Mestizo International Law: A Global Intellectual History (1842-1933) (CUP 2015). Berman H J, ‘The Western Legal Tradition in a Millennial Perspective: Past and Future’ (2000) 60 La. L. Rev. 740. Boisson de Chazournes L, ‘International economic law and the quest for universality’ (2019) 32 Leiden Journal of International Law 401, 413. Burke E, Reflections on the Revolution in France, 1790 (Pb. edition OUP 2009). Butler W E, International Law in Comparative Perspective (Brill 1980). Cassese S (ed.), Research Handbook of Global Administrative Law (Edward Elgar 2016). Chesterman S et al. (eds.), The Oxford Handbook of United Nations Treaties (OUP 2019). De Chazournes L B, ‘International economic law and the quest for universality’ (2019) 32 LJIL 401, 413.

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Dumberry P, ‘Incoherent and Ineffective: The Concept of Persistent Objector Revisited’ (2010) 59 ICLQ 2010 779. Duve T, ‘Legal traditions: A dialogue between comparative law and comparative legal history’ (2018) 6 Comparative Legal History 20. Fragmentation of International Law: Difficulties from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (ILC), finalized by Martti Koskenniemi, UN Doc. A/CN.4/L/682 (2006). Glenn P, ‘Comparative Legal Families and Comparative Legal Traditions’ in: Mathias Reimann/ Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (OUP 2006a) 424. Glenn P, Legal Traditions of the World (2nd edition, OUP 2006b). Heringa A W, Constitutions Compared (5th edition, Intersentia 2019). Hilpold P, ‘Ukraine, Crimea and New International Law: Balancing International Law with Arguments Drawn from History’ (2015) 14 Chinese JlL 237. Issaeva M, ‘A Quarter of a Century on from the Soviet Era: Reflections on Russian - Doctrinal Responses to the Annexation of Crimea’ in Wladyslav Czaplinski (ed.), The Case of Crimea’s Annexation under International Law (Wydawnictwo Naukowe Scholar 2017) 155. Janis M W, ‘Comparative approaches to the theory of international law’ (1986) 80 ASIL 152. Jessup P C, Transnational Law (Yale University Press 1956). Kennedy D, ‘The Disciplines of International Law and Policy’ (1999) 12 Leiden Journal of International Law, 19. Korhonen O, ‘Innovative International Law Approaches and the European Condition’ in José María Beneyto/David Kennedy (eds.), New Approaches to International Law (T.M.C. Asser Press 2012). Koskenniemi M, ‘International Law in Europe: Between Traditional and Renewal’ (2005) 16 EJIL 113. Mälksoo L, ‘Rossiiskaya doktrina mezhdunarodnogo prava’ (2013) 58 Evraziiskii iuridicheskii zhurnal 19. Merryman J and Pérez-Perdomo R, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (4th edition, Stanford University Press 2018). Orakhelashvili A, ‘The Idea of European International Law’ (2006) 17 EJIL 315. Petersmann E U, Cremona M, Hilpold P, Lavranos N, Staiger Schneider S and Ziegler A R, Reflections on the Constitutionalisation of International Economic Law (Liber Amicorum for Ernst-Ulrich Petersmann, Brill/Martinus Nijhoff 2014). Picker C B, ‘International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction’ (2008) 41 VandJTransnatlL 1083. Ruiz Fabri H, ‘Reflections on the Necessity of Regional Approaches to International Law Through the Prism of the European Example: Neither Yes nor No, Neither Black nor White’ (2011) 1 Asian Journal of International Law 84. Schachter O, ‘The Invisible College of International Lawyers’ (1977) 72 Nw.U.L. Rev. 217. Slaughter A-M and Burke-White W, ‘The Future of International Law is Domestic (or, The European Way of Law)’ (2006) 47 HarvIntlLJ 327. Sommermann K-P, ‘Die Bedeutung der Rechtsvergleichung für die Fortentwicklung des staats- und Verwaltungsrechts in Europa’ (1999) 52 Die öffentliche Verwaltung 1026. Wood M, ‘A European Vision of International Law: For What Purpose?’ in: Hélène Ruiz Fabri et al. (eds.), 1 Select Proceedings of the European Society of International Law (2008) 151. Zartner Falstrom D, ‘Thought Versus Action: The Influence of Legal Tradition on French and American Approaches to International Law’ (2006) 58 Maine L. Rev. 292.

The Concept of International Law: The German Perspective Christian Tomuschat

1 Introduction: Identification of the Topic To deal with the German perspective on international law amounts to a frightening undertaking. Obviously, to define international law means condensing in a few sentences entire libraries that span not just years but centuries of theories and empirical experiences. And yet even more frightening is the task of presenting a ‘German perspective’. Where would the factual elements of such a ‘German perspective’ be found? What seems easy at first glance becomes ever more difficult when trying to elucidate the meaning of those words. It need not be explained that no nation can have its ‘own’ international law. Two fundamentally different options may therefore be chosen. On the one hand, a quasi-official version would primarily focus on governmental acts and declarations relating to the foreign policy of Germany in order to find out whether some kind of common denominator may be discovered that could amalgamate the materials retrieved into some coherent whole. On the other hand, an alternative would be to take into account the relevant academic writings by German authors on the foundations and specificities of international law, purporting to identify any possible common features that would justify speaking of a particular ‘German school’ of international law.1

The current ‘schools’, classified according to substantive criteria, were carefully described by Bardo Faßbender, ‘Denkschulen im Völkerrecht’ (2012) 45 Berichte der Deutschen Gesellschaft für Völkerrecht 1-31; see also Anne Peters, ‘There is Nothing More Practical than a Good Theory: An Overview of Contemporary Approaches to International Law’ (2001) 44 GYIL 25-37. 1

C. Tomuschat (*) Humboldt University Berlin, Faculty of Law, Berlin, Germany © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 P. Hilpold (ed.), European International Law Traditions, https://doi.org/10.1007/978-3-030-52028-1_2

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Which Germany?

None of the two alternatives provides the student with clear-cut answers about the scope of the research to be undertaken. The ‘governmental version’ is first of all confronted with the question of what political regime should constitute the background of the study. Like almost all other countries, Germany has had no stable identity over the course of history.2 The modern German nation State emerged not earlier than 1871, and in the 150 years until today, it has experienced turbulent and bitter times, passing in 1919 from the Kaiserreich to the Weimar Republic, being overtaken by the national-socialist movement in 1933, coming under foreign occupation in 1945, being split into two provisional States in 1949 before achieving reunification in 1990 after the loss of roughly one quarter of its territory. It goes without saying that the designation as ‘German’ can hardly forge these different epochs together into one consistent concept as far as the views on the legitimate place of international law in the life of the nation are concerned. By definition, international law is permeated by structural choices of foreign policy: it would be naïve to believe that international law is exempt from any political colour. In particular, an aggressive dictatorship like the national-socialist regime must by necessity uphold other goals and objectives than a regime which, like the current one, feels committed to the ideas of international peace, human rights and democracy. Germany is not an entity with a perennial and unchangeable identity; it lacks a Leitkultur tied to its ethnic specificities that would invariably lead it onto a German Sonderweg (separate path).3

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Which Academic Fora?

Is it conceivable, on the other hand, that a ‘German concept’ of international law can be inferred from relevant academic writings?4 An overview of present-day textbooks reveals that consistently Article 38 of the Statute of the International Court of Justice is mentioned as a—more or less—accurate description of the sources of international law.5 Generally, it is mentioned, too, that in our epoch transnational relations are not any longer the monopoly of States, private actors exerting a determinative influence 2

For a recent analysis of that fragmented history see Dieter Borchmeyer, Was ist deutsch? (Berlin: Rowohlt 2017). 3 See Karl-Dietrich Bracher, ‘Final Observations’, in id (ed) Deutscher Sonderweg, Mythos oder Realität? (München: Oldenbourg 1982) 53 in a publication attempting to elucidate the concept of ‘Sonderweg’. 4 The question was already put many years ago by Thomas Giegerich and Andreas Zimmermann, ‘“Typisch Deutsch . . .“: Is There a German Approach to International Law?’ (2007) 50 GYIL 15-27. 5 See, e.g., Andreas von Arnauld, Völkerrecht (Heidelberg: 2nd edn C.F. Müller 2014) 75; Karl Doehring, Völkerrecht (Heidelberg: 2nd edn C.F. Müller 2004) 121; Rudolf Geiger, Grundgesetz

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in particular in international economic relations. State-centred international law is deemed to be on the wane6—before playing again a key role in situations of public emergency, like the financial crisis of 2008. Likewise, there exists today a broad consensus to the effect that human rights have moved to the centre stage of international law.7 One step further, almost no author fails to note that soft law is increasingly relied upon by States that prefer political arrangements to the rigours of hard law.8 These empirical observations, however, do not suffice to establish a specific German concept of international law inasmuch as these same observations have generally been made elsewhere as well.9 Lastly, attention might be drawn to the dogmatic construction of an international community,10 intensified by the hypothesis of ‘constitutionalization’ of international law, where German authors have been assuming a leading position.11 Outside Germany, enthusiasm for a constitutional interpretation of international law has und Völkerrecht (München: 6th edn Beck 2013) 77; Theodor Schweisfurth, Völkerrecht (Tübingen: Mohr Siebeck 2006) 55. 6 See, e.g., Gunther Teubner, ‘Globale Zivilverfassungen: Alternativen zur staatszentrierten Verfassungstheorie’, (2003) 63 ZaöRV/HJIL 1-28. 7 See Christian Tomuschat, Human Rights – Between Idealism and Realism (Oxford: OUP 3rd edn 2014) 2. 8 See overview by Wolfgang Weiß, ‘Rechtsquellen des Völkerrechts in der Globalisierung: Zu Notwendigkeit und Legitimation neuer Quellenkategorien’ (2015) 53 AVR 220-251. 9 Michael Wood, ‘“Constitutionalization” of International Law: A Sceptical Voice’ in Kaiyan Homi Kaikobad and Michael Bohlander (eds), International Law and Power. Perspectives on Legal Order and Justice: Essays in Honour of Colin Warbrick (Leiden & Boston: Martinus Nijhoff 2009) 85-97, 88, writes: ‘The Germans think of international law as a set of value norms, with the United Nations at its centre’ – but does admit that this proposition is to be relativized (89). - In a recent study about the socialization of German internationalists the emphasis is placed on the close connection between domestic constitutional law and international law in the legal education system, which impacts German writers to conceive of international law as a well-ordered system and less as a fragmented landscape shaped by historical contingency: Nico Krisch, ‘The Many Fields of (German) International Law’ in Anthea Robert (ed) Comparative International Law (Oxford: OUP 2018) 91-109. 10 See, in particular, Hermann Mosler, ‘Völkerrecht als Rechtsordnung’ (1966) 36 ZaöRV/HJIL 6, 16; Andreas L. Paulus, Die internationale Gemeinschaft im Völkerrecht (München: C.H. Beck 2001); Mehrdad Payandeh, Internationales Gemeinschaftsrecht. Zur Herausbildung gemeinschaftsrechtlicher Strukturen im Völkerrecht der Gegenwart (Heidelberg: Springer 2010); Christian Tomuschat, ‘Die internationale Gemeinschaft’ (1995) 33 AVR 1-20. 11 See eg Jochen A. Frowein, ‘Konstitutionalisierung des Völkerrechts’ (2000) 39 Berichte der Deutschen Gesellschaft für Völkerrecht 427-447; Stefan Kadelbach and Thomas Kleinlein, ‘Überstaatliches Verfassungsrecht. Zur Konstitutionalisierung im Völkerrecht’ (2006) 44 AVR 235-266; Thomas Kleinlein, Konstitutionalisierung im Völkerrecht. Konstruktion und Elemente einer idealistischen Völkerrechtslehre (Heidelberg: Springer 2012); Anne Peters, ‘Are We Moving towards Constitutionalization of the World Community?’ in Antonio Cassese (ed), Realizing Utopia (Oxford: OUP 2012) 118-135. Emphasizing the economic dimension of constitutionalization: Ernst Ulrich Petersmann, Multilevel Constitutionalism for Multilevel Governance of Public Goods (Oxford & Portland, Oregon: Hart 2017); Christian Tomuschat, ‘Konstitutionalisierung des Völkerrechts durch die Vereinten Nationen’ in Ewald Grothe and Arthur Schlegelmilch (eds), Constitutional Moments (Berlin: Berliner Wissenschafts-Verlag 2020) 185-203.

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mostly been met with some reservations, not least because of doubts as to the true meaning of constitutionalization.12 The fact alone that more and more matters have been regulated by treaties or other prescriptions within the purview of international law would certainly be a conditio sine qua non but not a sufficient condition for the legitimate use of that term. Without some considerable degree of effectiveness, any regulation risks remaining within the realm of wishful speculation. Remedies are necessary for translating normative prescriptions into hard substance. What has occurred in (Western) Europe cannot be observed similarly on the other continents.13 In any event, the views of the ‘constitutionalists’, among whom some voices in the literature also count the present author14 on account of his General Course given at The Hague Academy in 1999,15 although he has never had recourse to the word ‘constitutionalization’,16 do not stand for the German school of international law in general.17 They form an influential but not a majority group.18 Germany as a country with a constitutional framework that guarantees freedom of expression and freedom of science and culture (Article 5 BL) welcomes democratic pluralism in all sectors of societal activity, accordingly also in academic discourse. Hence, almost by necessity, scholars are split even on crucial issues relating to Germany’s foreign relations. They rarely voice their opinions unisono. A significant example in point is the debate about Germany’s invocation of sovereign jurisdictional immunity in proceedings concerning compensation for war crimes committed by the German military during the time of Italy’s occupation from 1943 to 1945. Before the International Court of Justice, the German Government was successful in arguing that Italy had committed a violation of the customary rule of immunity by entertaining such claims as to their merits.19 The majority of German writers manifested their agreement with this outcome.20 However, some younger 12 See eg Wood (n 9) 85-97; Lauri Mälksoo, Book review (2012) 50 AVR 245-6. Critical assessment also by Oliver Diggelmann and Tilmann Altwicker, ‘Is There Something Like a Constitution of International Law?’ (2008) 68 ZaöRV 623-650. 13 Cogently observed by Christian Walter, ‘Der Internationale Menschenrechtsschutz zwischen Konstitutionalisierung und Fragmentierung’ (2015) 75 ZaöRV/HJIL 753-770, in particular 764. 14 Armin von Bogdandy, ‘Constitutionalism in International Law: Comment on a Proposal for Germany’ (2006) 47 HarvIntlJ 223, 224. 15 Christian Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999) 281 Hague Academy of International Law Collected Courses. 16 Correct classification by Ulrich Haltern, ‘Tomuschats Traum: Zur Bedeutung von Souveränität im Völkerrecht’ in Pierre-Marie Dupuy and others (eds), Common Values in International Law. Essays in Honour of Christian Tomuschat (Kehl: N.P. Engel 2006) 867, 870. 17 A prominent position to the contrary is defended, eg, by Haltern (ibid.) 867ff. 18 Acknowledged by von Bogdandy (n 14) 224. 19 ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), 2012 ICJ Reports 99. 20 See Hermann-Josef Blanke and Lara Falkenberg, ‘Is There State Immunity in Case of War Crimes Committed in the Forum State?’ (2013) 14 German Law Journal 1817, 1842 (notwithstanding some doubts concerning legal policy); Matthias Kloth and Manuel Brunner, ‘Staatenimmunität im Zivilprozess bei gravierenden Menschenrechtsverletzungen’ (2012) 50 AVR 219-243, 242; Karin

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international lawyers sharply criticized the ICJ for having allegedly overlooked the impact of human rights guarantees, some of which having a jus cogens character, on the scope of jurisdictional immunity.21 According to their views, such a rule of ‘ordinary’ international law had to yield in the presence of the jus cogens breaches that had been committed.22 Clearly, between such antagonistic opinions, no common denominator, a ‘German school’ of international law, can be found.

1.3

The ‘Official’ Version

Therefore, after careful reflection, I decided to choose the ‘official version’ as the main object of the present lecture, instead of unfolding a wide panorama of the German literature on the characteristic features of international law. I shall not delve into legal history. Admittedly, by relying mainly on the normative propositions of positive international law as revealed in actual practice, philosophical reflection on its moral foundations will to some extent be pushed to the background. Instead, attention will mainly be directed to the ways and means in which contemporary Germany, the Federal Republic of Germany, deals with issues of international law. I am fully aware of the danger that large parts of my presentation must inevitably follow the paths already outlined by Klaus Vogel half a century ago23 and later my own writings.24 Yet revisiting earlier insights is not a bad thing per se. Also, this

Oellers-Frahm, ‘State Immunity vs. Human Rights’ in Mensch und Recht. Festschrift für Eibe Riedel (Berlin: Duncker & Humblot 2013) 389, 398; Robert Uerpmann-Witzack, ‘Serious Human Rights Violations as Potential Exceptions to Immunity: Conceptual Challenges’ in Anne Peters and others (eds), Immunities in the Age of Global Constitutionalism (Leiden & Boston: Brill Njhoff 2014) 236, 241. 21 Markus Krajewski and Christopher Singer, ‘Should Judges Be Front-Runners? The ICJ, State Immunity and the Protection of Fundamental Human Rights’ (2012) 16 MaxPlanckUNYB 1-34, 30-1; Mehrdad Payandeh, ‘Staatenimmunität und Menschenrechte’ (2012) 67 Juristenzeitung 949, 957; see also Michael Bothe, ‘Remedies of Victims of War Crimes and Crimes against Humanities: Some Critical Remarks on the ICJ’s Judgment on the Jurisdictional Immunity of States’ in Immunities in the Age of Global Constitutionalism (n 20) 99-115. See also the earlier article by Jasper Finke, ‘Sovereign Immunity: Rule, Comity or Something Else?’ (2011) 21 EJIL 853-881, 866-870. 22 On these grounds, invoking the constitutional principle that in any case of a violation of fundamental rights the victim must have a right to redress, the Italian Constitutional Court (judgment no. 238, 22 October 2014) ruled that the judgment of the ICJ (n 19) cannot be executed in Italy. Criticism by Christian Tomuschat, ‘The National Constitutional Trumps International Law’ (2014) 6 Italian Journal of Public Law 189-196. 23 Die Verfassungsentscheidung des Grundgesetzes für eine internationale Zusammenarbeit: ein Diskussionsbeitrag zu einer Frage der Staatstheorie sowie des geltenden deutschen Staatsrechts (Tübingen: Mohr 1964). 24 Christian Tomuschat, ‘Staatsrechtliche Entscheidung für die internationale Offenheit’ in Josef Isensee and Paul Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. XI (Heidelberg: C.F. Müller 3rd edn 2013) 3-61. See also Karl-Peter Sommermann, ‘Offene

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orientation does not mean that no account should be taken of the encounters that Germany had with international law before the critical date of 1949. Such shortsightedness would amount to throwing away the key to many of the positions of principle Germany has adopted as the legal framework for its foreign policy.

1.4

Germany Within the Framework of International Law

Like the first part of the title of this lecture, also the second part, international law, requires elaboration. From the very outset, it should be noted that ‘Germany’ was unable to put a determinative hallmark on its general definition and the classification of its rules as they are in current use today. During the nineteenth century, when international law grew up in Europe, in particular through treaty making and other practices, the different German-speaking States, loosely tied together in the German Confederation (Deutscher Bund), were just some actors among many others, some of which were more powerful, and even the German Reich after 1871 was by no means the most influential nation.25 Generally, the legal literature spoke of ‘European’ international law, viewing it as a common heritage of all (Western) European States. Heffters’s famous textbook on international law of 1840,26 which was published in eighth edition by Friedrich Heinrich Geffcken, still carried the title Das Europäische Völkerrecht der Gegenwart.27 There was a general agreement that treaties as well as customary international law belonged to the body of international law.28 Yet no unanimity existed as to the recognition of additional rules performing a complementary function to fill the lacunae left by treaty and custom. When in 1920 a definition of the sources of law to be applied by the Permanent Court of International Justice (PCIJ)29 was set out in the Statute of that Court, which the institutions of the League elaborated fairly swiftly with the assistance of an

Staatlichkeit: Deutschland’ in Armin von Bogdandy and others (eds), Handbuch Ius Publicum Europaeum, Vol. II (Heidelberg: C.F. Müller 2008) 3-35. 25 It may be noted, in this connection, that French was the dominant diplomatic language during the 19th century. French was, accordingly, the authentic version of the Act of the Congress of Vienna, 9 June 1815, reprinted in Wilhelm G. Grewe (ed), Sources Relating to the History of the Law of Nations, Vol. 3/1: 1815-1945 (Berlin/New York: Walter de Gruyter 1992) 3. 26 August Wilhelm Heffter, Das Europäische Völkerrecht der Gegenwart (Berlin: Schroeder 1844). On Heffter see Wilfried Küper, ‘August Wilhelm Heffter (1796-1880). Ein preußischer Kriminalist und Universaljurist im 19. Jahrhundert’ in Stefan Grundmann and others (eds), Festschrift 200 Jahre Juristische Fakultät der Humboldt-Universität zu Berlin (Berlin: De Gruyter 2010) 179-203. 27 Berlin: Müller, 1888. 28 See eg Franz v. Liszt, Das Völkerrecht (Berlin: 1898) 6-7. 29 The establishment of the PCIJ was provided for in Article 14 of the Covenant of the League of Nations.

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Advisory Committee of Jurists (Article 38),30 Germany could not participate in that work. Although the Covenant had been adopted as an integral part of the Treaty of Versailles, Germany had not been invited to join the League, which was originally conceived of as an anti-German alliance.31 Thus, no German voice could be heard on the addition of the ‘general principles of law recognized by civilized nations’ (Article 38(1)(c)), which came about at the end of a deeply controversial discussion.32 Very soon, however, it appeared that no serious opposition was raised against that novelty. Since that time, textbooks generally mention the general principles as a class of legal rules that usefully complement the classical dichotomy of treaties and custom.33 Authors have stressed that this was an innovation only in a formal sense inasmuch as recourse to general principles had always been a recognized method in international law.34 When in 1945 after WWII the Statute of the International Court of Justice (ICJ) was prepared, Germany was absent once again. The reasons are well known. In any event, however, no meaningful debate on the clauses of the Statute took place. The delegates present in San Francisco simply decided to carry on the Statute of the defunct PCIJ with only minor modifications.35 The provision determining the rules of international law to be applied by the ICJ (again Article 38) was not discussed. Although in a strict sense Article 38 of the ICJ Statute confines itself to issuing instructions to the ICJ as to its method of work, the international community, governmental practice as well as scholars view this provision much beyond that limited function grosso modo as a general description of the positive international law in force.36 Nonetheless, critics note that the list of Article 38(1) is incomplete, in particular because it does not mention the secondary legislation of international

30 For the drafting process see Alexander Pandelli Fachiri, The Permanent Court of International Justice. Its Constitution, Procedure and Work (Oxford: Clarendon Press 1925) 1-10; Alain Pellet and Daniel Müller, ‘Comments on Article 38’ in Andreas Zimmermann and others (eds), The Statute of the ICJ. A Commentary (Oxford: OUP, 3rd edn 2019) 819, 826-831, margin notes 17-41. 31 Germany became eventually a member of the League on 8 September 1926. 32 See Antonio Cassese, International Law in a Divided World (Oxford: Clarendon Press 1986) 170-1. 33 However, the general principles were ‘forgotten’ in the last (twelfth) edition of von Liszt’s textbook revised by Max Fleischmann: Das Völkerrecht (Berlin: Springer 1925) 15-19. 34 See Alfred Verdross, Völkerrecht (Berlin: Julius Springer 1937) 76. 35 See Ole Spiermann, ‘Historical Introduction’ in The Statute of the International Court of Justice (n 30) 114, paras 49-50. 36 See eg Andreas von Arnauld, Völkerrecht (Heidelberg: C.F. Müller 2nd edn 2014) 75; Patrick Daillier, Mathias Forteau and Alain Pellet, Droit international public (Paris: L.G.D.J. 8th edn 2009) 126; Karl Doehring, Völkerrecht (Heidelberg: C.F. Müller 2nd edn 2004) 121; Rudolf Geiger, Grundgesetz und Völkerrecht, (München: Beck, 6th edn 2013) 77; Theodor Schweisfurth, Völkerrecht (Tübingen: Mohr Siebeck 2006) 55; Malcolm Shaw, International Law (Cambridge: Cambridge University Press 5th edn 2003) 66-7.

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organizations37 nor unilateral acts that, under specific circumstances, may produce binding effects for their author.38

2 The Determinations of the Basic Law How should the new democratic Germany respond to the array of legal rules that had been developed largely without its active participation? It was obvious that it had to distance itself from all the distortions and attempted manipulations of the Nazi era when most international lawyers had embraced a position of strict nationalism.39 Those tendencies reached their culmination point in the expansionist Großraumtheorie invented by Carl Schmitt,40 which boiled down to an unveiled apology of German military might in Europe,41 or the clumsy attempts by Norbert Gürke and Otto Koellreutter to relate the annexionist Nazi policies to the principle of self-determination.42 No more would international law be called a construct of ‘international Jewry’.43 But what should Germany do to expiate its crimes, to the extent that it was at all able to raise its voice under the prevailing conditions of foreign occupation? It could well have opted for a passive role, considering that in any event it had to accept the rules applicable to all other States as well, having to hope that it would not be kept permanently under a regime of discrimination as an author of the most atrocious catastrophe humankind had ever lived through. This was not the stance the new authorities took when they defined Germany’s international status by drafting the new Constitution, the Basic Law. They attempted to

See eg Christian Tomuschat, ‘Ensuring the Survival of Mankind’ (n 15) 308; Weiß (n 8) 223, 230. See eg the lengthy considerations devoted by the ICJ to the resolutions adopted by the Security Council on Kosovo, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 CJ Reports 403, 426-430. 38 For a survey see Victor Rodríguez Cedeňo and María Isabel Torres Cazorla, ‘Unilateral Acts of States in International Law’ in MPIL Encyclopedia of Public International Law, Vol. X (Oxford: OUP, 2012) 163-172. 39 See the well-documented study by Céline Jouin, ‘Le droit international allemand dans l’entredeux-guerres. La fuite dans l’histoire (2010) 114 RGDIP 535-561. 40 See critique by Mathias Schmoeckel, Die Großraumtheorie: ein Beitrag zur Geschichte der Völkerrechtswissenschaft im Dritten Reich, ins besondere der Kriegszeit (Berlin: Duncker & Humblot 1993). 41 Carl Schmitt, Völkerrechtliche Großraumordnung mit Interventionsverbot für raumfremde Mächte. Ein Beitrag zum Reichsbegriff im Völkerrecht (Berlin, Leipzig and Wien: Deutscher Rechtsverlag, 4th edn 1941) 41: ‘The accomplishment (die Tat) of the Führer has conferred on the idea of the Reich political reality, historical truth and a great future in terms of international law’. 42 Norbert Gürke, Grundzüge des Völkerrechts, 2nd edn revised by Otto Koellreutter (Berlin and Wien: Spaeth & Linde 1942) 17. 43 See Michael Stolleis, ‘Against Universalism – German International Law under the Swastika’, (2007) 50 GYIL (2007) 91, at 95; see also Anne Peters, ‘Die Zukunft der Völkerrechtswissenschaft: Wider den epistemischen Nationalismus’ (2007) 67 ZaöRV/HJIL 721, 765. 37

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provide specific answers at least to some of the open issues where determinations had to be made on the interrelationship between the international legal order and the domestic legal order of Germany. Deliberately, they wished to show the outside world the new spirit that was motivating them.44 In spite of the dominant position of the victorious Allied Powers in their respective zones of occupation, the process of constitution making in the three Western zones evolved essentially free from any outside interference regarding the determinations concerning the future foreign policy of the West German rump State in statu nascendi. The Germans themselves took the decisions which they thought to be convenient, given the past experience of 12 years of ruthless dictatorship and denial of the basic values of European civilization. Only few conditions were set by the military governors of the US, UK and French zones of occupation, which the constituent assembly, the Parliamentary Council (Parlamentarischer Rat), had to comply with. The new Constitution had to be democratic and had to provide for a governmental structure of federal type, duly protecting the rights of the participating States.45 Additionally, the text to be drawn up was required to provide for guarantees of individual rights and freedoms. All of these conditions corresponded fully to the aspirations of the German people itself. Therefore, the authorization by the three Western Powers of the constitutional instrument, for which the name ‘Basic Law’ was chosen in order to indicate its provisional character,46 encountered no obstacles.47 For a transitory period, however, the conduct of German foreign relations remained under the control of the Occupation Forces.48 The Germans in the Soviet zone of occupation could not participate in the process of constitution making, which the Western Powers allowed to take place under their supervision and control. Responding to the emergence of the Federal Republic of Germany in the West of the country, the Soviet Union pushed ahead with the building of a second German State, the German Democratic Republic (GDR), which was never able to achieve a recognized degree of legitimate autonomy. Yet the first Constitution of the GDR of 1949 declared in its Preamble that the ‘German people’49 was imbued with the desire ‘to promote friendship with other peoples and to secure peace’, words that were replaced by intensely combative language in the text of the revised second Constitution of 1968.50 As from the very first day, words On the positions assumed by German legal scholars see Knut Ipsen, ‘International Legal Scholarship in West Germany after World War II’ (2007) 50 GYIL 111-137. 45 Frankfurt Document One, 1 July 1948, reprinted in: Ingo von Münch (ed), Dokumente des geteilten Deutschland (Stuttgart: Alfred Kröner 1968) 88, 89. 46 Today, that flavour of provisionality has completely disappeared. 47 The Draft Basic Law was approved by the Western Military Governors on 12 May 1949, text reproduced in: Dokumente des geteilten Deutschland (n 45) 130. 48 Frankfurt Document Three, ibid 90. 49 The 1949 GDR Constitution confirmed indeed the concept of the unity of the German people, while the 1968 Constitution identified as its author the ‘people of the GDR’. 50 http://germanhistorydocs.ghi-dc.org/pdf/eng/Document%2012%20Constitution%20of%20the% 20GDR%201968.pdf. 44

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and deeds differed. Scholarly freedom of research and expression was severely constrained. Any articulations in the field of international relations, in particular concerning the legal status of Germany, were placed under strict control by the top ranks of the political hierarchy.51 Only at a late stage did an official textbook on international law appear.52 It was the outcome of a collective undertaking which the Government had tightly supervised. That first publication as well as the few subsequent ones truly reflected a common GDR position that was closely aligned with the Soviet views of international law. Only one publication had an inspirational value by reflecting original views, Bernhard Graefrath’s short monograph on the key principles of the international legal order within the framework of the UN Charter.53 In general, however, it is fair to say that the practice of the GDR Government and the legal writings published under its authority cannot be rated as the expression of a genuine German concept of international law.

2.1

The Preamble

Already in its Preamble, the Basic Law proclaimed that the German people were inspired by the ‘determination to promote world peace as an equal partner in a united Europe’, thereby manifesting the will of the German people to take its place in the world community and in Europe under the auspices of peace and equality and to renounce any hegemonic aspirations. This formulation was considerably stronger than the words found in the Preamble of the Weimar Constitution of 1919, where it had also been stated that the German people were willing to ‘serve the internal and external peace’. The words of the Preamble of the Basic Law may be considered a programme for the particularization of the approach to international law from the national viewpoint. They amounted first of all to a promise to engage, to the best of the abilities of the German people, in international cooperation, in particular on the European soil with a view to achieving a united Europe. To take this route of ‘friendliness’ or ‘openness’ to international law was not self-evident in 1949 since, as already noted, Germany was still under a regime of occupation. In 1945, the four Allied Powers had decided by virtue of the Potsdam Agreement54 not to restore Germany’s territorial integrity, placing instead the territories east of the Oder-Neisse line under Polish and Russian administration. More than ten million Germans had been expelled from their ancestral homes, allegedly in conformity with international See the representative study by Theodor Schweisfurth, ‘The Science of Public International Law in the German Democratic Republic’, (2007) 50 GYIL 149-200. 52 Völkerrecht. Lehrbuch, written by a collective group of authors (Berlin: Staatsverlag der DDR 1973), 2nd. edn in two parts, 1981 and 1982. 53 Bernhard Graefrath, Zur Stellung der Prinzipien im gegenwärtigen Völkerrecht (Berlin: Akademie-Verlag 1968). 54 Of 2 August 1949, reprinted in Dokumente des geteilten Deutschland (n 45) 32; http:// germanhistorydocs.ghi-dc.org/pdf/eng/Allied%20Policies%208_ENG.pdf. 51

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law.55 Obviously, the Germans felt that the guilt they had accumulated during the 12 years of the Nazi dictatorship compelled them to accept the situation they were confronted with, hoping that in the future full compliance with the general principles of international law could also be expected from the Allied side.

2.2

The General Rules of International Law: Article 25 BL

One may daresay without any hesitation that the most courageous decision the Parliamentary Council took was to introduce the general rules of international law into the domestic legal order. Article 25 BL provides: The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.

This provision not only flung the gates wide open to the ‘general rules’ as they existed in 1949 but is intended to welcome them in their actual substance at any given moment also in the future. It therefore acts as a permanent entry point. Since in many instances it may be controversial whether a general rule of international law exists and what its scope and meaning is, the Basic Law provides that if and when indeed such doubts arise in a pending proceeding, the judicial body seized with the matter is obligated to make a referral to the Federal Constitutional Court (FCC), which then shall clarify the matter.56 The audacity of that decision by the Parliamentary Council can hardly be overrated. By ordering that any general rules of international law shall continually take precedence over any statutory law of ordinary rank,57 the Parliamentary Council manifested unlimited confidence in the international processes from which such general rules emerge. General rules need not be recognized by Germany either. Under the 1919 Weimar Constitution, Article 4 had provided that ‘ The generally recognized rules of international law are valid as binding elements of German Reich law’.

In the relevant literature, there existed complete agreement to the effect that only rules recognized also by the German Reich came within the scope of that provision. Although conceived of as a determination of principle, Article 4 made no real sense According to R.M. Douglas, author of Orderly and Humane – The Expulsion of the Germans after the Second World War (New Haven & London: New Haven Press 2012) between 12 and 14 million civilians were driven out of their homes, http://www.huffingtonpost.com/rm-douglas/ expulsion-germans-forced-migration_b_1625437.html. 56 It may be noted that the Federal Constitutional Court is not an institution that possesses special expertise in international law. 57 The general rules are located hierarchically below the Basic Law, FCC, 26 March 1957, BVerfGE 6, 309, 363; 14 October 2004, BVerfGE 111, 307, at 318; 26 October 2004, BVerfGE 112, 1, at 25; 15 December 2015, BVerfGE 141, 1, at 17, margin notes 38, 41. 55

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since it was observed at the same time that any statute to the contrary could revoke the recognition granted to such a rule.58 Under the Basic Law, by contrast, any law purporting to abolish or to restrict a rule of general international law would be vitiated by invalidity. Assessed in philosophical terms, Article 25 BL amounts to a far-reaching subordination of Germany’s sovereignty to the demands of the international community. As a sovereign State, Germany had twice suffered a disastrous defeat in acting unilaterally by going to war. Article 25 BL was to exclude such fatal errors. The drafters of the BL saw compliance with the general rules of international law as the best preventive remedy against the recurrence of major misfortunes caused by inconsiderate political decisions.59 The question remains what should be understood by a ‘general rule’ of international law. Apparently, the Parliamentary Council did not follow the classification scheme operated by Article 38 of the ICJ Statute, where customary law and general principles of law recognized by civilized nations are identified as distinct sources of law to be applied by the ICJ. A review of the travaux préparatoires shows that speakers originally held divergent views of what kind of legal rules were elevated to the rank of norms with primacy value.60 Eventually, the opinion prevailed that the ‘general rules’ would be the reflection of the general views held in all civilized nations on law and justice, some kind of ‘tacit agreement among the people of our Western law family not to wish to live below a specific legal standard of civilization’.61 As a prominent example, the Hague Rules62 were mentioned, being considered a codification of applicable customary standards.63 Lengthy discussions were furthermore devoted to the question of whether the condition of the Weimar Constitutions that a general rule requires to be accepted by Germany should be maintained. Eventually, that former version of the rule was rejected in full consciousness of the consequences entailed by the subordination of Germany’s domestic legal order to the general rules.

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Cf. in particular Gerhard Anschütz, Die Verfassung des Deutschen Reichs vom 11. August 1919, (Berlin: Georg Stilke 14th edn 1933) 64-5. 59 Frank Schorkopf, Staatsrecht der internationalen Beziehungen (München: C.H. Beck, München 2017) 147–170, rightly calls Art. 25 BL a ‘Schlüsselnorm’ (key norm). The 1949 Constitution of the GDR contained a similar rule (Article 5): ‘The generally recognized rules of international law are binding upon state authority and every citizen. It is the duty of state authority to maintain and cultivate amicable relations with all peoples.” This provision disappeared from the 1968 Constitution of the GDR where Article 8(1) provided: ‘(1) The generally recognized rules of international law that serve peace and peaceful cooperation among nations are binding for the state and for every citizen. The German Democratic Republic will never undertake a war of aggression or use its armed forces against the freedom of another people.’ 60 See Report in (1951) 1 Jahrbuch des öffentlichen Rechts der Gegenwart, Neue Folge 229-235. 61 Deputy Carlo Schmid, ibid 232. 62 Regulations respecting the laws and customs of war on land, 18 October 1907, https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/0/1d1726425f6955aec125641e0038bfd6. 63 Deputy Carlo Schmid (n 61) 230.

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Lastly, the Parliamentary Council opted in favour of extending the binding effect of the general rules to the individual.64 General international law was intended to be fully ensured in Germany down to the grassroots level. The members of the Parliamentary Council lived still under the trauma of the Nazi dictatorship where national egocentrism had broken all the bridges with the international community. By tying the future destiny of Germany to the system of international law, any recurrence of those aberrations of the past was to be avoided. Thus, eventually, a new belief in the justice of international law prevailed over all objections and hesitations. In sum, one may speak of a moment of glory of the new spirit of German democracy.

2.2.1

International Customary Law

Notwithstanding the noble intentions of the drafters, it could not be recognized immediately what actual scope should be attributed to the ‘general rules’ since, as already pointed out, they do not correspond to a specific category of norms under the usual classification scheme of the sources of international law.65 In accordance with the indications to be gleaned from the travaux préparatoires, one could have maintained that only the fundamental principles applicable to international relations should enjoy primacy over domestic legislation. Indeed, one author defended that position.66 But when in 1962 the Federal Constitutional Court (FCC) had to adjudge the first referral made to it under Article 100(2) BL, responding to a question raised by a lower tribunal concerning the scope of international jurisdictional immunity on German territory, the Karlsruhe judges made a determination to the contrary. More or less following the listing of unwritten rules of international law in Article 38 of the ICJ Statute, they held that primarily Article 25 BL comprised all rules of international customary law,67 without any distinction as to their importance concerning international peace and security.68 For them, the primary concern was to ensure at all times unrestricted harmony between the requirements of international law and the

64 Violations of Article 25 BL may indeed be judicially invoked by an injured individual, FCC, 26 October 2004, BVerfGE 112, 1, 21. 65 For a detailed commentary on Article 25 BL see Hans-Joachim Cremer, ‘Allgemeine Regeln des Völkerrechts’ in Josef Isensee and Paul KIrchhof (eds), Handbuch des Staatsrechts, Vol. XI (Heidelberg: C.F. Müller 3rd edn 2013) 369-411; Christian Tomuschat, ‘Comments on Article 25’ in Bonner Kommentar zum Grundgesetz (Heidelberg: C.F. Müller 2019). 66 See Michael Silagi, ‘Die allgemeinen Regeln des Völkerrechts als Bezugsgegenstand in Art. 25 GG und Art. 26 EMRK’ (1980) EuGRZ 632, 646. 67 The literature on customary law is abundant. Reference is made only to two more recent publications: Maurice Mendelson, ’The Formation of Customary International Law’ (1999) 272 Hague Academy of International Law Collected Courses 155-410; Alexander Orakhelashvili, ‘Natural Law and Customary Law’ (2008) 68 ZaöRV/HJIL 69-110. 68 FCC, 30 October 1962, BVerfGE 15, 25, at 33. This line has been consistently upheld, see recently decision of 15 December 2015, BVerfGE 140, 316, 336, margin note 42.

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position under German domestic law.69 Accordingly, Article 25 BL encompasses not only the ‘constitutional principles’ of the international legal order, like sovereign equality and non-use of force and non-intervention, but also rules of a more detailed character concerning, for instance, matters under the law of the sea or State and diplomatic immunity.70 No discussion ever took place in Germany on whether the traditional rules of customary international law needed to be scrutinized because of their origins in an epoch when the colonial powers were still dominant in shaping the substantive contents of international law. This debate, launched by developing countries in the sixties of the last century71 with some justification,72 has outlived itself. Since the end of the decolonization process, developing countries have been actively participating in a broad process of review through the relevant institutions of the United Nations. Today, criticisms that customary international law reflects solely the interests of the traditional Western countries lack essentially any well-founded justification. The school of ‘Third World Approaches to International Law’ (TWAIL) seems to be based mainly on ideological grounds, much less so on identifiable hard facts.73

2.2.2

General Principles of Law

Additionally, the Federal Constitutional Court holds that the ‘general principles of law recognized by civilized nations’ as listed in Article 38(1)(c) of the ICJ Statute are covered by the concept of ‘general rules’.74 Apparently, the primary concern of the FCC was to maintain at all times complete conformity of Germany’s domestic legal order with the legal exigencies supported by the overwhelming majority of the nations of the world. But it has never been easy to identify those requirements embodied in ‘general principles’, which hitherto have not played any major role in the jurisprudence of the World Court, neither of the PCIJ nor of the ICJ.75 Still in the

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Emphasized by FCC, 14 May 1968, BVerfGE 23, 288, 316. In fact, most of the cases that have reached the FCC under Article 100(2) BL concerned issues of immunity. 71 See eg Georges Abi-Saab, ‘The Third World and the Future of the International Legal Order’ (1973) RevEgyptDrInt 27-66. 72 See on the concept of a governmental entity ICJ, Western Sahara, Advisory Opinion, 1975 ICJ Reports 12, 64. 73 Cf B.S. Chimni, ‘Third World Approaches to International Law: a Manifesto’ (2006) 8 IntCommLR 3-27, and response by Christian Tomuschat, ‘World Order Models: a Disputation with B.S. Chimni and Yasuaki Onuma’ ibid 71-79. 74 FCC, 30 October 1962, BVerfGE 15, 25, at 34-5; 30 April 1963, BVerfGE 16, 27, at 33; 14 May 1968, BVerfGE 23, 288, at 317; 9 June 1971, BVerfGE 31, 145, at 177; 13 May 1996, BVerfGE 94, 315, at 328; 24 October 1996, BVerfGE 95, 96, at 129; 10 June 1997, BVerfGE 96, 68, at 86; 6 December 2006, BVerfGE 117, 141, at 149; 8 May 2007, BVerfGE 118, 124, at 134; 15 December 2015, BVerfGE 141, 1, at 18, margin note 42. 75 See Pellet and Müller, Comments on Article 38 ICJ Statute (n 30) 924, margin note 254. 70

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early years under the regime of the UN Charter, a certain unease could be perceived regarding ‘general principles’, authors normally not going beyond the two concepts of good faith and abus de droit as constituting the relevant examples.76 It is indeed well known that the original concept was focused on principles anchored in the domestic legal orders of the States members of the international community, as clearly reflected in the wording of Article 38(1)(c) of the ICJ Statute.77 Already at the time of the PCIJ, however, it had been maintained that there existed alongside those principles genuine principles of the international legal order, not derived from domestic law.78 Indeed, this is undeniable. Many functional elements of the international legal order cannot properly be traced back to a general practice overarched by opinio juris.79 This dilemma is reflected already in the jurisprudence of the PCIJ, which, in the famous Chorzów case, stated in a straightforward manner that it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form.80 The ICJ, on its part, has become accustomed to referring to ‘general international law’, a category of norms that does not fit exactly into Article 38 of its Statute.81 The ICJ uses this term with regard to rules that cannot properly be called customary law since it would be hard to show a continual and consistent practice.82 For instance, as recognized by the PCIJ, many of the rules of State responsibility are essentially derived from basic premises of the international legal order and less so from hard occurrences of international practice. The proviso that every breach of international law entails responsibility and obligates the wrongdoer to make good the harm done constitutes a basic premise for the bindingness of international law. Without any

76 See, e.g., the cautious observations by Hersch Lauterpacht in Lassa Oppenheim and Hersch Lauterpacht, International Law. A Treatise, Vol. I (London: Longmans 8th edn 1955) 29-30, and, more recently, Pellet and Müller (n 75) 927, margin note 261. 77 R.P. Anand, ‘The International Court of Justice and the Development of International Law’, (1965) 7 IntlStud 228-261, at 234; Godefridus J.H. van Hoof, Rethinking the Sources of International Law (Deventer et al.: Kluwer 1983) 139. 78 Berthold Schenk von Stauffenberg, Statut et Règlement de la Cour permanente de Justice internationale (Berlin: Carl Heymanns 1935) 277. See also the instructive discussion by Michel Virally, ‘The Sources of International Law’ in Max Sorensen (ed), Manual of Public International Law (London et al.: Macmillan 1968) 116, 143-148. 79 Klaus Ferdinang Gärditz, ‘Ungeschriebenes Völkerrecht durch Systembildung’ (2007) 45 AVR (2007) 1, 23-27; Weiß (n 8) 226. 80 PCIJ, Factory at Chorzów, Jurisdiction, 26 July 1927, Series A No. 9, 21. 81 For a first tentative approach see Christian Tomuschat, ‘What is “general international law’ in Guerra y Paz: 1945-2009. Obra Homenaje al Dr. Santiago Torres Bernárdez (Universidad del País Vasco 2010) 329-348; id, ‘General International Law: A New Source of International Law?’ in Riccardo Pisillo Mazzeschi and Pasquale De Sena (eds), Global Justice, Human Rights and the Modernization of International Law (Springer 2018) 185-204. 82 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), 20 April 2010, 2010 ICJ Reports 14, 83, para. 204; Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) – Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), 16 December 2015, 2015 ICJ Reports 665, 720 para 152, 723 para. 162.

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such consequences, international law would lack any teeth; it could be violated by every State at its pleasure. Such paradigmatic rules belong essentially to the body of international law as well and are therefore encompassed by Article 25 BL.83 Another class of general principles consists of the constitutional cornerstones of the present-day international legal order, like sovereign equality and non-use of force. These prominent principles have their foundations in the Charter of the United Nations and in international customary law. However, they constitute at the same time general principles that put their hallmark on the entire framework of the international legal order.84 This classification becomes relevant in the domestic legal order of Germany by elevating, pursuant to Article 25 BL, the outstanding principles of the UN Charter beyond the level of rules of treaty law to the extent that they do not qualify as customary law. It is inescapable, hence, to divide the general principles into two classes, those flowing from a consensus embodied in domestic legal orders and those inherent specifically in the international legal order. Thus, it is today widely accepted that in particular basic human rights have acquired the quality of general principles of the international legal order.85 Gradually, the general principles are unfolding their vast potential. The lack of clarity concerning the meaning of ‘general principles of law’ at the international level has also left its traces in the jurisprudence of the FCC. For many years, the standard formula was that Article 25 comprised also the ‘general principles of law’ or the ‘recognized general principles’,86 the FCC consistently avoiding to make any reference to ‘civilized nations’. In two decisions of the more recent past, by contrast, the FCC stressed that the rules of customary international law were complemented ‘by general principles derived from the national legal orders’.87 The latest relevant decision, however, has again omitted that new specification, speaking succinctly of the ‘general principles of international law’.88 Hitherto, these linguistic divergences have not had any actual impact because, to date, the FCC has only had

83 The research could be continued regarding other meta-rules of international law, the rules of recognition according to H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press 2nd edn 1964) 100. 84 Rightly pointed out by Orakhelashvili (n 67) 106-109. 85 Splendid demonstration of the various sources of unwritten human rights law by Bruno Simma and Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus cogens, and General Principles’, (1992) 12 AustYBIL 82-108. Similar interpretation by Petersmann (n 11) 81, 125-6. The distinction between rules and principles, advocated by Niels Petersen, ‘Der Wandel des ungeschriebenen Völkerrechts im Zuge der Konstitutionalisierung’ (2008) 46 AVR 502-523, has little explanatory value. 86 See FCC, 14 May 1968, BVerfGE 23, 288, at 317; 9 June 1971, BVerfGE 31, 145, at 177; 13 May 1996, BVerfGE 94, 315, at 328; 24 October 1996, BVerfGE 95, 96, at 129; 10 June 1997, BVerfGE 96, 68, at 86. 87 FCC, 6 December 2006, BVerfGE 117, 1412, at 149; 8 May 2007, BVerfGE 118, 124, at 134. 88 FCC, 15 December 2015, BVerfGE 141, 1, at 18, margin note 42.

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to address disputes concerning rules of customary law by way of a preliminary ruling. It stands to reason that, as confirmed by the jurisprudence of the FCC, rules of jus cogens in particular are encompassed by the ‘general rules’,89 no matter whether they are classified as customary rules or as general principles. By so holding, the FCC has acted in full consonance with the original intentions of the drafters.90 At the same time, these judicial determinations are a recognition of the concept of jus cogens on the part of Germany, while other countries are still hesitant to acknowledge such incisive restriction of their treaty-making powers.91 No explicit safety net was included in the text of Article 25 BL since expectations took it for granted that the interplay of actions and responses by international actors would eventually produce almost inevitably well-balanced solutions, secured by the criterion of generality of the rules concerned.92 Fears that via Article 25 BL Germany could be overpowered by anti-democratic forces in international fora, as they have been articulated by some authors,93 lack therefore any reasonable clues.94 One may well agree with the FCC that the relevant rules of international law must remain within the framework of the basic value determinations of the Basic Law (Articles 23 to 26, 1(2)),95 but generally accepted international rules can be expected never to cross those border lines.96 There was hence no need for this affirmation. One must also regret that the FCC incidentally endorsed, in a lightly drafted short sentence,97 the doctrine of persistent objection,98 which long since has lost its factual basis.99

89

FCC, 7 April 1965, BVerfGE 18, 441, 448; 26 October 2004, BVerfGE 112, 1, at 27. See above the text related to footnotes 61-63. 91 France is the most prominent case in point, see Hélène Ruiz Fabri, ‘La France et la convention de Vienne sur le droit des traités’: éléments de réflexion pour une éventuelle ratification’ in Gérard Cahin and others (eds), La France et le droit international (Paris: Pedone 2007) 137-167. 92 It should be recalled, however, that the ‘general rules’ have not been classified by the jurisprudence of the FCC as enjoying constitutional rank (n 57). 93 See Rudolf Streinz, comments on Article 25 in Michael Sachs, Grundgesetz. Kommentar, (München: Beck, 7th ed 2014) 999, margin note 24. 94 See eg Christian Tomuschat, Article 25 (n 65) margin note 59. 95 FCC, 26 October 2004, BVerfGE 112, 1, 25; see also 14 October 2004, BVerfGE 111, 307, 318. Apparently the FCC took its inspiration from its jurisprudence concerning the European integration process: FCC, 30 June 2009 (Lisbon judgment), BVerfGE 123, 267, 347, margin number 226. 96 It is true, however, that because of the requirements of the rule of law not all general rules are susceptible of being applied to the detriment of individuals, see Stefan Talmon, ‘Die Grenzen der Anwendung des Völkerrechts im deutschen Recht’ (2013) 68 Juristenzeitung 12, 15ff. 97 FCC, 13 December 1977, BVerfGE 46, 342, 389. 98 For a recent study see James A. Green, The Persistent Objection Rule in International Law (Oxford: OUP 2016). 99 See Patrick Dumberry, ‘Incoherent and Ineffective: The concept of Persistent Objector Revisited’, (2010) 59 ICLQ 779-802. For a view to the contrary see Talmon (n 96) 14. It seems unfortunate that the ILC in its work on ‘Identification of customary international law’ has provisionally adopted a draft conclusion (15) that accepts the concept of persistent objection, ILC, [2016) Report, UN doc. A/71/10, 112. The observer notes that the precedents cited in support do not say what they 90

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Here, the FCC follows an outdated line of obiter dicta of the ICJ,100 never fully supported by substantive arguments, that reveals a spirit of nationalistic narrowmindedness. Summing up, it can be said that by endorsing the general rules of international law in a spirit of optimistic world solidarity, Germany has departed resolutely from the classical principle of national sovereignty, according to which specific consent is required for any assumption of an international obligation. It should be reiterated in this connection that to make Article 25 BL the pivotal element of the constitutional architecture was an act of German self-determination, not induced by Allied pressure.

2.3

International Treaties: Article 59(2) BL

Regarding treaty law, the Basic Law takes a more conservative stance. It restricts itself to stating that the conclusion of treaties of major relevance requires the assent of the two legislative bodies, the Bundestag and the Bundesrat, according to complex modalities (Article 59(2) BL). A treaty validly approved by a parliamentary statute acquires the rank of an ordinary law for domestic purposes. It does not enjoy any precedence vis-à-vis other legislative enactments,101 and the FCC has stated explicitly that no exception applies with regard to the European Convention on Human Rights in that it cannot prevail over the fundamental rights under the Basic Law.102 Consequently, at least in theory, the substance of any treaty incorporated into the domestic legal order by a statute of approval can be abrogated by any later statute pursuant to the general rule: lex posterior derogat legi priori.103 This happens rarely, but it does so from time to time. Only recently did the FCC have to determine whether, given the increasing pace of globalization, the traditional doctrine should be given up and be replaced by the principle of primacy of international treaties, in analogy to the model of Article 25 BL. The FCC dismissed this request for innovation almost unanimously, against one dissenting vote only. Taking a

supposedly are meant to say, see European Court of Human Rights, case of Sabeh El Leil v. France, App no. 34869/05, 29 June 2011, para 54. 100 ICJ, Colombian-Peruvian Asylum case, 1950 ICJ Reports 266, 277-8; Anglo-Norwegian Fisheries case, 195 ICJ Reports 116, 131. 101 FCC, 26 March 1987, BVerfGE 74, 358, 370; 14 October 2004, BVerfGE 111, 307, 317; 15 December 2015, BVerfGE 141, 1, margin numbers 33, 37, 43-50, 74. 102 FCC, 14 October 2004, BVerfGE 111, 307, 315. 103 In other European countries, international treaties enjoy precedence over acts of ordinary legislation: France: Article 55 Constitution, confirmed by Conseil d’Etat. Sarran, 30 October 1998; Cour de cassation, Fraisse, 2 June 2000. Greece: Article 28(1) Constitution; Italy: restrictions of the lex posterior principle through the jurisprudence, see Carlo Panara, ‘Offene Staatlichkeit: Italien’ in Armin von Bogdandy and others (eds), Handbuch Ius Publicum Europaeum, Vol. II (Heidelberg: C.F. Müller 2008) 143, 146, margin notes 8-9; Netherlands: Article 94 Constitution.

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resolutely dualist position, the FCC allowed the unilateral modification of a double taxation treaty concluded with Turkey that had allegedly been misused.104 On the other hand, the Federal Administrative Court has ruled that a derogation occurs only if the legislature has explicitly stated its intention to that effect.105 One may doubt whether the same response would have been given if through a legislative act an attempt had been made to deviate from commitments under the European Convention of Human Rights or the International Covenant on Civil and Political Rights, treaties that generate individual rights under international law106 and that have been dubbed an ‘international law parallel constitution’ of Germany.107 One might moreover almost take it for granted that any deviation from the domestic effects of the UN Charter would have encountered resolute resistance from the Karlsruhe judges.108 In any event, it would appear to be evident that the substance of the treaty concerned cannot be disregarded, especially in instances where such treaty was concluded in compliance with the objectives of the Basic Law concerning international cooperation.109 In the case of a double taxation treaty, no crucial issues of public order were touched upon. Therefore, the FCC could without any great difficulty rely on the abstract classification of treaties within the hierarchy of legal norms in Germany. In other words, regarding ‘ordinary’ international treaties, the German practice holds on to the classical pattern of dichotomy between national and international law. Unconditional precedence in domestic law is granted only to unwritten legal norms that enjoy the unconditional support of the international community. It thus appears that in foro interno, the Grundnorm of pacta sunt servanda enjoys in Germany only weak protection against abrogation, although treaties constitute the main instrument for international cooperation. Does this judgment amount to a return to classical German positions on the legitimacy of international law? Some of those positions are well known and were succinctly analyzed by Martti Koskenniemi in ‘The Gentle Civilizer of Nations’.110 Yet generalizations would be 104

FCC, 15 December 2015, BVerfGE 141, 1. The FCC did not deny that such unilateral amendment of the international commitment may entail international responsibility. 105 Federal Administrative Court, 1 C 36.04, 13 December 2005, margin note 20, following FCC, 26 March 1987, BVerfGE 74, 358, 370. 106 The question whether any act made by the institutions under those treaties requires the same kind of respect requires careful examination. 107 See Christian Tomuschat, ‘Der Verfassungsstaat im Geflecht der internationalen Beziehungen’, (1978) 36 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 7, 52. 108 It is interesting to note that in the United Kingdom the Government was denied the power to withdraw from the European integration treaties without explicit parliamentary approval specifically because of the rights conferred on individuals by those treaties, Supreme Court, 24 January 2017, [2017] UKSC 5. 109 The FCC referred in its decision of 14 October 2004, BVerfGE 111, 307, 319, to the opposite alternative that an international treaty might not be in conformity with fundamental values of the Basic-Law. 110 Martti Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge University Press 2002) 179-265.

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hazardous. Hegel’s reflections on the State’s sovereignty and its ensuing unrestricted power, placed under the title ‘The External Constitutional Law’ (“Das äussere Staatsrecht”), were mainly derived from abstract philosophical ideas about the absolute perfection of the nation State, not applied to international law in action,111 and the same may be said about Adolf Lasson.112 On the other hand, Hegel had followers who wished to introduce his concept of absolute sovereignty into the practice of international law. In the second half of the nineteenth century, Philipp Zorn, the chief delegate of the German Reich during the negotiations at the two Hague Peace Conferences of 1899 and 1907,113 became the main protagonist of the concept ‘external constitutional law’,114 and in 1933, Ludwig Schecher devoted an entire monograph to that concept, purporting to describe in detail that international law proper did not exist and all the relevant rules had been set forth by German legislation.115 He came to his erroneous conclusions by defining law as a ‘system of compulsion’ (‘Zwangsordnung’). Noting that international law lacked adequate enforcement machinery, he dismissed international law from the ‘authentic’ class of law. However, the line pursued by Zorn and later Schecher had never been the dominant one in international legal scholarship in Germany.116 Yet still in the last days of the national-socialist regime in Germany, when plans for the establishment of the United Nations had already become discernible, the conservative lawyer Carl Bilfinger held that international law being a regime associating independent sovereign States, it was inconceivable to establish above them an overarching governmental structure with binding powers of command.117

Grundlinien des Philosophie des Rechts (Berlin 1821) §§ 330-340. Adolf Lasson, Princip und Zukunft des Völkerrechts (Berlin: Hertz 1871), in particular 48: ‘international law is not law’ because of its precarious character. 113 See Arthur Eyffinger, The 1899 Hague Peace Conference. The Parliament of Man, the Federation of the World (The Hague et al.: Kluwer Law International 1999) 149; Koskenniemi (n 110) 211-3. 114 ‘Das Deutsche Gesandtschafts-, Konsular und Seerecht’, (1882) Annalen des Deutschen Reichs 81, 82-3, where he declares international law to be ‘conceptually impossible’. Later, Zorn reneged on the rigid positions taken by him during his youth, becoming a true advocate of international law, see eg Die Zukunft des Völkerrechts (Berlin: Vossische Buchhandlung 1918). 115 Ludwig Schecher, Deutsches Außenstaatsrecht (Berlin: Junker & Dünnhaupt 1933). 116 During the 19th century, August Wilhelm Heffter, Das Europäische Völkerrecht der Gegenwart (Berlin 1844, 8th edn prepared by Heinrich Geffcken, Berlin 1888), Johann Caspar Bluntschli, Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt (Nördlingen 1868), and Franz v. Liszt, Das Völkerrecht (Berlin 1898) had concurrently defined international law as the entirety of rules governing the relations between States that are supported by a common legal consensus. 117 ‘Der Streit um das Völkerrecht’ (1944) 12 ZaöRV 1-33. On Bilfinger’s involvement with the Nazi regime cf Felix Lange, ‘Carl Bilfingers Entnazifizierung und die Entscheidung für Heidelberg’ (2014) 74 ZaöRV/HJIL 697-730, in particular 705-708. Cogent observations on Bilfinger by Jouin (n 39) 559-60. It is highly significant that in his first article as Director of the Heidelberg Institute of Comparative Public and International Law, ‘Friede durch Gleichgewicht der Macht?’ (1950) 13 ZaöRV 27-51, Bilfinger did not lose a single word on the period between 1933 and 1945. 111 112

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At first glance, maintaining the principle of lex posterior also with regard to statutes that approve international treaties, introducing their substance into the German legal order, may appear disturbing. Germany lags behind in effectuating international treaties, while many other nations generally elevate them to a rank above ordinary legislation.118 Yet the time may be over when international treaties were regarded as a class of rules that generally deserve primacy. International law by treaty has become a working horse for everyday business. In its judgment of 15 December 2015, the FCC proceeded from that simple finding by observing that to grant primacy to international treaties would lead to a dangerous petrification of the law. Precisely in our epoch of globalization, where international law advances to all fields of societal activity, rapid reactions, not attainable by way of negotiation, may be required from time to time to stem extremely undesirable developments. Classifying international treaties as untouchable by ordinary legislation could therefore lead to self-paralysis contrary to democratic self-determination as well as to an unstoppable loss of legitimacy.119

2.4 2.4.1

Other Key Determinations European Integration

Regarding international cooperation, Germany has additionally committed itself in specific terms. As already indicated, the Preamble directs German governmental authorities to strive for a united Europe. Participation in the European integration process was therefore not a free political choice but compliance with a constitutional command. For this purpose, Article 24(1) BL (now Article 23 BL) provided for the transfer of powers to international institutions. This is not the place to describe in detail the step-by-step development of the European integration that since a couple of years has found its culmination in the European Union endowed by its members with wide-ranging governmental powers and where member States are to a wide but not boundless extent prepared to accept majority decisions adopted against their will. For decades, the progressive march of the integration process seemed like a natural current that could not be reined in. The decision of the United Kingdom to leave the EU, which took effect on 31 January 2020, has destroyed that certainty. The European integration has regained all the features of a historical process exposed to the vagaries of history. Originally, the competence to transfer powers to the supranational level was not limited by the text of Article 24(1) BL. Such constraints had to be found elsewhere in the constitutional framework, in particular in the ‘eternity clause’ of Article 79 (3) BL, according to which a number of specific value determinations—human

118 119

See n 103. FCC, 15 December 2015, BVerfGE 141, 1, 22, margin number 53.

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dignity, democracy, separation of powers—may never be touched upon, not even by way of a constitutional amendment.120 When in 1993 the European Economic Community was transformed into the European Union, the legislature deemed it indispensable to lay down explicitly certain boundaries of the integration process as it had gained fresh momentum. The new Article 23 BL now provides: With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law.

The FCC maintains at the same time that regarding the protection of human rights and any issues that directly affect German identity, it must have the last word as the ultimate guardian of Germany’s sovereign power.121 The strong affirmation of this position of principle in the decision ruling on the compatibility of the Treaty of Lisbon with the Basic Law122 was recently put into practice in a case concerning the recognition of a warrant of arrest issued by another member country. The FCC declared the execution of an Italian arrest warrant to be incompatible with human dignity and therefore contrary to the core values of German constitutional identity.123 Thus, the FCC finds itself in full harmony with other European constitutional tribunals that likewise see themselves as the ultimate guardians of the key principles of their specific national legal order.124 On the other hand, the FCC has recently made a groundbreaking decision in which it proclaimed that in order to secure the most complete protection of everyone under German jurisdiction, it would henceforth apply also the rights under the Charter of Fundamental Rights of the European Union, alongside the fundamental rights under the BL, in case it has been seized by a constitutional complaint regarding matters governed by Union law.125 In that way, the FCC will put itself at the service of the European Union but will at the same time gain a preponderant The ‘Solange’ decision of the FCC, 29 May 1974, BVerfGE 37, 271, acquired soon notoriety in the whole of Europe; English translation: https://law.utexas.edu/transnational/foreign-law-transla tions/german/case.php?id¼588. 121 FCC, 15 December 2015, BVerfGE 140, 317, 337, margin note 43; 21 June 2016, BVerfGE 142, 123, 194-197, margin numbers 135-141; 18 July 2017, BVerfGE 146, 216, 253-256, margin numbers 54-58; 6 November 2019, 1 BvR 276/17, Right to be forgotten II, margin note 47. 122 FCC. 30 June 2009, BVerfGE 123, 267. Comments by Christian Tomuschat, ‘Terminal of the European Integration Process?’ (2010) 70 ZaöRV 251-282, 262; Maja Walter, ‘Integrationsgrenze Verfassungsidentität – Konzept und Kontrolle aus europäischer, deutscher und französischer Perspektive’ (2012) 72 ZaöRV/HJIL 177-200. 123 FCC, 15 December 2015 (n 121). 124 For an overview see Alejandro Saiz Arnaiz and Carina Alcoberro Llivina (eds), National Constitutional Identity and European Integration (Cambridge et al.: Intersentia 2013). For the far-reaching limitations put by the Russian Constitutional Court and later Russian legislation (Law of 2 June 2014) on judgments of the European Court of Human Rights see Matthias Hartwig, ‘Vom Dialog zum Disput?’ (2017) 44 EuGRZ 1-23. 125 FCC, 6 November 2019, 1 BvR 276/17, Right to be forgotten II, margin note 32. 120

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position in the process of determining the meaning and scope of the Charter rights. Thus, the complex institutional relationship between the European Union and its member States will grow into even further amalgamated structures.

2.4.2

Germany in Systems of Collective Security

From the very outset, the Basic Law has also provided also for the adherence by Germany to systems of collective security. Article 24(2) BL states: With a view to maintaining peace, the Federation may enter into system of mutual collective security; in doing so it shall consent to such limitations upon its sovereign powers as will bring about and secure a lasting peace in Europe and among the nations of the world.

Here again, unfettered optimism in international cooperation comes to the fore. Although in 1949 Germany was still a discriminated outsider, the drafters of the Basic Law looked to the United Nations as a guarantor of peace and stability on a worldwide scale. It is well known that, contrary to expectations which at that time may have been nurtured, the two German States were admitted as members to the United Nations only in 1973, i.e. 28 years after the end of World War II. Still today, the so-called enemy State clauses of Articles 53 and 107 exist that deny Germany the full protection of the principle of non-use of force. However, no responsible statesperson is any longer worried by the presence in the UN Charter of those two provisions. They have lost their raison d’être since the admission of the Federal Republic of Germany to the United Nations certified explicitly that the applicant was a ‘peace-loving’ State. Moreover, UNGA Resolution 60/1 of 2005, the World Summit Outcome, mentions the enemy State clauses as provisions that should be formally deleted from the UN Charter (para. 177). Germany has manifested its interest in close cooperation with the United Nations in putting up its candidacy for non-permanent membership in the Security Council several times. It occupied such a permanent seat during 2-year periods from 1977 to 1978, 1987 to 1988, 1995 to 1996, 2003 to 2004 and 2011 to 2012 and has again achieved membership for the years 2019–2020. Realizing that a permanent seat would provide it with much better faculties to engage in decision-making at world level, Germany, acting in alliance with Brazil, India and Japan, endeavoured for a couple of years to be awarded such a seat, which would require an amendment of the UN Charter. In 2005, these efforts came to a halt when the General Assembly could not agree on an extension of the group of permanent members.126 Germany’s application is still pending but has lost, for the time being, any chance of success. No general mood of change favouring the candidature of Germany can be observed. Neither are the current permanent members eager to see their privileged positions negatively affected, nor are developing countries enthusiastic about seeing the

126 On this discussion see Peter Hilpold, ‘Reforming the United Nations: New Proposals in a longlasting Endeavour’ (2005) 52 NILR 389-431.

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Western domination of the Security Council augment still further. It appears that currently the reform process has come to a complete standstill.

2.4.3

Germany and the International Court of Justice

Lastly, it should be underlined that the Basic Law also enjoined the governmental institutions to adhere to the international system of jurisdictional settlement of disputes. Article 24(3) BL provides: For the settlement of disputes between states, the Federation shall accede to agreements providing for general, comprehensive and compulsory international arbitration.

With its unfelicitous drafting, this is the least satisfactory of all the constitutional articles that purport to prescribe a principled line of conduct for German foreign policy. The Parliamentary Council may not have been well aware of the fact that jurisdictional clauses in the international domain are typically extremely cautious, at universal level never requiring that the acceptance of the jurisdiction of an international judicial body be general, comprehensive and compulsory. It is invariably left to the interested States to commit themselves of their own free will according to the prevailing circumstances. Article 36 of the Statute of the Permanent Court of International Justice already provided for declarations of acceptance tailored to the needs of the country concerned. The specifications of Article 24(3) BL went far beyond what could be realistically expected and remained therefore a dead letter for many years.127 One could even ask whether the provision was serious. Only few voices in the legal literature, brushing off all the uncertainties attaching to it, advocated its actual implementation by making a declaration under Article 36 (2) of the ICJ Statute.128 Finally, in 2008, the Federal Government took the step that Article 24(3) had outlined only in a vague manner. Essentially, Germany declared that it recognized the ICJ’s jurisdiction ratione materiae for any subject matter pro futuro, with a reservation, however, regarding any disputes resulting from the involvement of the German armed forces abroad or any other military activities on German territory.129 By submitting to the jurisdiction of the ICJ, Germany wished to manifest publicly its confidence in the viability of the concept of judicial settlement of international disputes. Along those lines, it is worth noting that in seven cases, Germany was a party to contentious proceedings before the ICJ, for the last time from 2008 to 2012,

127

However, by adhering to the European Union and becoming a party to the European Convention on Human Rights, both treaties with comprehensive jurisdictional clauses, Germany acted in the spirit promoted by Article 24(3) BL. 128 For an extensive discussion on that issue see Christian Tomuschat, comments on Article 24 BL, Bonner Kommentar zum Grundgesetz (Hamburg: Hansischer Gildenverlag 1985) 127-138. 129 http://www.icj-cij.org/jurisdiction/index.php?p1¼5&p2¼1&p3¼3&code¼DE. For a comment see Christophe Eick, ‘Die Anerkennung der obligatorischen Gerichtsbarkeit des Internationalen Gerichtshofs durch Deutschland’ (2008) 68 ZaöRV/HJIL 763-777.

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when the confirmation was sought—and obtained—that the Italian judiciary had infringed the jurisdictional immunity of Germany by entertaining claims for compensation by victims of war crimes committed during World War II by the German military authorities.130

2.4.4

Ban on Wars of Aggression

Lastly, mention is deserved by the provision of Article 26(1) BL, according to which: [a]cts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression, shall be unconstitutional. They shall be made a criminal offence.

This is a further provision designed to render the international ban on wars of aggression effective. The German Penal Code was duly complemented by the required prohibition.131 Moreover, Germany took an active part in the drafting of the Rome Statute of the International Criminal Court during the Rome Conference of June and July 1998. Its dynamism contributed decisively to the successful outcome of that Conference. Subsequent to the adoption of the Rome Statute, the German legislature adopted a Code of Crimes Against International Law,132 which provides for universal jurisdiction with regard to all the crimes listed in the Rome Statute.133 When in 2010 a conference was convened in Kampala to particularize the crime of aggression, which in the Rome Statute had only figured as a blanket provision (Article 5(d)), Germany was one of the States that actively promoted the planned completion of the Rome Statute. With a view definitively to distancing itself from the Nazi past, the German Government wished to underline the necessity of providing for the legal instruments that would render the prosecution of the intellectual and factual authors of aggression possible as required by the circumstances.134

130

ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), (2012) ICJ Reports 99. But see n 22 on the refusal of the Italian Constitutional Court to comply with the judgment of the ICJ, a decision openly in breach of Article 94 of the UN Charter. 131 Article 80 of the Penal Code, since 1 January 2017 Article 13 International Penal Code. 132 Of 26 June 2002. 133 Article 1: ‘This Act shall apply to all criminal offences against international law designated under this Act, to serious criminal offences designated therein even when the offence was committed abroad and bears no relation to Germany.’ 134 See Claus Kreß, ‘Germany and the Crime of Aggression’ in Suzannah Linton and others (eds), For the Sake of Present and Future Generations: Essays on International Law, Crime and Justice in Honour of Roger S. Clark (Leiden & Boston: Brill Nijhoff 2015) 31-51. The difficulties of prosecuting the crime of aggression are also underlined by Bartlomiej Krzan, ‘Frieden und Gerechtigkeit nach der Kampala-Konferenz’ (2010) 48 AVR 467-485. Comprehensive assessment by Robert Böttner, ‘Von Nürnberg über Rom nach Kampala’ (2013) 51 AVR 201-238.

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Openness to International Law: Völkerrechtsfreundlichkeit

Condensing the teleology of the constitutional provisions just commented upon, the FCC has coined the concept ‘openness to international law’ (‘Völkerrechtsfreundlichkeit’) as guideline for the interpretation of legal rules that are connected to Germany’s international relations.135 One of the essential results of this all-encompassing concept is the instruction to interpret the human rights under the Basic Law in consonance with the individual rights and freedoms set forth by the European Convention on Human Rights.136 More recently, the FCC has also emphasized that the fundamental rights under the Basic Law must additionally be construed in light of the corresponding rights of the EU Charter of Fundamental Rights.137 Additionally, the FCC holds that decisions of the ICJ relating to individual guarantees in other treaties like the UN Consular Convention138 must also be taken into account when interpreting the relevant provisions of German Law.139 On the other hand, the FCC has taken the view that to permit restricting the principle of non-extradition of nationals, i.e. the lowering of a constitutional principle, stands in conformity with a general trend in international law and can therefore be deemed to be acceptable under constitutional law.140 The position of the sovereign State that has the prerogative to determine the scope and meaning of its human rights charter according to its own preferences has been deliberately abandoned. Pursuant to the jurisprudence of the FCC, harmony between the parallel rules under European and domestic law should be constantly pursued. Openness to international law is not just a judicial construction, not supported in active political life. Soon after its admission to the United Nations in 1973, the Federal Republic of Germany applied for a post of judge at the ICJ, which was indeed obtained by the director of the Heidelberg Max Planck Institute for International and Comparative Public Law, professor Hermann Mosler, elected in 1975 (1976–1885). Two German judges followed him in The Hague: Carl-August Fleischhauer (1994–2003) and Bruno Simma (2003–2012). Concomitantly, Germany attempted to strengthen its hand in the process of shaping international law. Nominations for membership in the International Law Commission were successful

135

FCC, 14 October 2004, BVerfGE 111, 307, 317-8; 15 December 2015, BVerfGE 141, 1, 26, margin numbers 64-5; 6 November 2019, 1 BvR 16/13, Right to be forgotten I, margin number 61. 136 FCC, 26 March 1987, BVerfGE 74, 358, 370; 29 May 1990, BVerfGE 82, 106, 120; 14 November 1990, BVerfGE 83, 119, 128; 14 October 2004, BVerfGE 111, 307, 317; 4 May 2011, BVerfGE 128, 326, 366, 369-70; 6 November 2019, BvR 16/13, Right to be forgotten II, margin number 58. This jurisprudence has been followed by all other German tribunals, see eg Federal Administrative Court, 18 December 2014, BVerwGE 110, 203, margin note 6. 137 FCC, 6 November 2019, 1 BvR 16/13, Right to be forgotten I, margin number 60. 138 Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261. 139 FCC, 19 September 2006, 2 BvR 2115/01, margin notes 58-62. 140 FCC, 18 July 2005, BVerfGE 113, 273, 296.

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three times (Christian Tomuschat, 1985–1996; Bruno Simma, 1997–2002; Georg Nolte, 2007–). An illustrious example of the seriousness with which the German Government acts for the promotion of the aims and principles of the UN Charter is the moving speech delivered by Foreign Minister Genscher on the occasion of the first appearance of the united Germany in the General Assembly of the United Nations, where he emphatically emphasized the determination of Germany to work resolutely for international peace and security in full compliance with the dictates of the Charter.141 However, as already pointed out, the FCC has recently begun to re-orient its jurisprudence regarding Germany’s relations with international law. It has downgraded—in a political not in a legal sense—the role of international law by emphasizing the function of national sovereignty as the ultimate guardian of the fundamental values legally protected by the BL. The most significant step in that direction is the explicit caveat that the general rules of international law (Article 25 BL) may deploy their effects solely within the normative framework set by the BL.142 Likewise, one may regret the unnecessary albeit correct statement that the European Convention on Human Rights remains at the level of an ordinary statute and is structurally controlled by the Basic Law.143 More understandable is the assertion that vis-à-vis the law of the EU, the FCC retains the functional role as watchdog of German sovereign identity since in the earlier days of the European integration process, the FCC had to fight hard for the preservation of the human rights substance of the national constitutions at the European level.144 In actual terms of legal practice, no real shift has occurred. But apparently, the broad faith in the moral superiority of international law has eroded to some extent. In sum, it must be acknowledged that the FCC considers now national sovereignty to provide the best guarantee for the preservation of the national value system and not the international community.

141

UN doc. A/45/PV.8, 26 September 1990, 2-32. FCC, 26 October 2004, BVerfGE 112, 1, 25: ‘The Basic Law aims to achieve the opening of the domestic legal system for public international law and international cooperation in the form of a supervised binding effect; it does not provide that the German legal system should be subordinated to the system of public international law and that public international law should have absolute priority over constitutional law, but instead it seeks to increase respect for international organisations that preserve peace and freedom, and for public international law, without giving up the final responsibility for respect for human dignity and for the observance of fundamental rights by German state authority’; see also FCC, 15 December 2015, BVerfGE 141, 1, 28, margin note 69. 143 FCC, 14 October 2004, BVerfGE 111, 307, 319. 144 See in particular the 1974 ‘Solange’ decision (n 120). 142

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3 Unimaginative and Naïve Positivism: Legal Overzeal? Notwithstanding these recent tendencies, one may say that Germany can be proud of an excellent balance sheet. Subject to a critical review, which cannot be provided on this occasion, the actual practice seems to be in full conformity with all of the requirements of the international legal order. Nonetheless, a few additional comments cannot be dispensed with.

3.1

German Positivism

The Basic Law lacks any ambitions of innovation. The German Government accepts the structures of positive international law telles quelles, clearly manifesting its satisfaction with the system as it stands. Does German legal thinking therefore lack inspirational force? Additionally, does not Germany undercut the bases of legitimacy of international law by embracing it in the form of the general rules currently present in the international community? A look at realities shows that Germany is eager to contribute to improving the international legal order wherever this may appear to be desirable. Knowing from its own history the close connection between disturbances in the domestic political system and its external repercussions, Germany has consistently conducted a policy for the promotion and protection of human rights. The West German State, the Federal Republic of Germany, belonged to the first group of States to ratify the European Convention on Human Rights,145 in the confection of which it had not been able to participate.146 Similarly, it hastened to ratify at a fairly early stage the two International UN Covenants,147 where again it had been excluded from the drafting process and was slightly overtaken in time by the German Democratic Republic.148 After the Federal Republic of Germany had become a member of the UN, it was, e.g., one of the most active advocates of the abolition of the death penalty through the elaboration of the second Optional Protocol to the International Covenant on Civil and Political Rights.149 It is true that positivism has become a negative buzzword. In particular regarding Germany’s history of the last century, positivism is blamed for the fall of the Weimar Republic in that no legal remedies were available against undemocratic methods of a political group that had come to power through democratic methods. However, positivism cannot simply be equated with total disregard for restrictions on the 145

On 4 November 1950. The Federal Republic of Germany became a member of the Council of Europe only on 13 July 1950 while the organization had come into being on 8 August 1949. 147 On 17 December 1973. 148 Ratification on 8 November 1973. 149 Of 15 December 1989, 1642 UNTS 414 (88 States parties on 8 February 2020). 146

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exercise of State power and all the checks and balances that constitute the foundations of the rule of law.150 The rule of law is no formalistic device, commanding obedience to any order issued by the State machinery.151 It suffers perversion under a dictatorship where every governmental act is controlled by the supreme political authorities. Since the Nazi regime had abolished all independent institutions, the core of the rule of law was hit and destroyed. As a consequence of its essentially egalitarian character since the end of the decolonization process, the international legal order is endowed with effective checks and balances preventing it from falling into the hands of a particular group that only promotes its own interests to the detriment of the international community. It emerges from the confluence of the acts and declarations of the 193 States currently present on this globe. Claims and responses to these claims tend continually to establish a well-balanced equilibrium. Even the big powers are not able unilaterally to establish their own practices as commonly applicable legal standards. The attack on Iraq in 2008 by US and British forces elicited widespread rejection in the international community, and the occupation of Crimea by Russian forces has suffered the same fate.152 None of these two operations was able to undermine the bases of the principle of non-use of force. Likewise, the US policy of targeted killings has not been able to scuttle the normative parameters of international humanitarian law protecting non-belligerents. Therefore, trust in the generally approved standards of conduct in international relations has solid foundations. The consensus of the international community is amply reflected in the general rules of international law as by definition they operate on the basis of generality and reciprocity. Moreover, it must not be overlooked that the international legal order of our time is based on strong pillars that are suitable to ensure international peace and security. The three most significant provisos in this regard are sovereign equality of States, the prohibition on the use of force and of intervention and the obligation to observe and respect human rights. Together, these principles are capable of guaranteeing a situation of peacefulness in international relations. Peoples, organized as States, are free to make their own decisions on their domestic matters in the exercise of their right of self-determination. The ban on the use of force obligates them to

150

But this misunderstanding seems to underlie the brilliant advocacy by Ulrich Scheuner for a renewal of natural law: ‘Naturrechtliche Strömungen im heutigen Völkerrecht’ (1950) 13 ZaöRV 556-614. 151 For the distinction between a ‘thin’ and a ‘thick’ concept of the rule of law see Christian Tomuschat. ‘Democracy and the Rule of Law’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (Oxford: OUP 2013) 469-496, 476. 152 See Peter Hilpold, ‘Ukraine, Crimea and New International Law: Balancing International Law with Arguments Drawn from History’ in (2015) 14 ChineseJIL 237-270. But see the attempt by Russian authors to justify the annexation of Crimea by wrongly invoking the principle of selfdetermination: Anatoly Kapustin, ‘Crimea’s Self-Determination in the Light of Contemporary International Law’ (2015) 75 ZaöRV/HJIL 101-118; Vladislav Tolstykh, ‘Three Ideas of SelfDetermination in International Law and the Reunification of Crimea with Russia’ ibid 119-139.

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confine their activities principally to their own territory and to their own nationals and other persons under their jurisdiction. Additionally, the principle of human rights establishes a framework of protection against governmental authority and misuse. In their combination, these principles constitute the foundations of legitimate stability. The main challenge is to ensure respect for these basic principles. In order to keep this system alive and operative, German scholarship was united in condemning all efforts to undermine its foundations. When in September 2002 the Bush administration proclaimed its National Security Strategy,153 which provides for recourse to the use of force in all instances where the predominant power of the USA could be jeopardized in the long run, without any actual threat being identifiable,154 protests were unanimous.155 Apparently in an attempt not to create tensions in the relationship with its US ally, the German Government itself responded evasively when asked about its assessment of that Strategy.156 Dangers are obvious. Changing the rules of self-defence to permitting anticipatory self-defence would amount to providing pretexts for armed intervention. The German Government scrupulously heeded the ban on the use of force when Chancellor Schröder refused to join the invasion of Iraq by the USA and the UK,157 but it refrained from characterizing it as wrongful under international law.158 By contrast, the German Federal Administrative Court declared that operation to be unambiguously an aggression contrary to international law.159 The right of self-defence must indeed be kept within strict limits. In this regard, all the relevant German actors speak with one voice.160 In accordance with Article 41(2) of the ILC’s articles on State responsibility,161 Germany feels obligated not to recognize annexation of territory by force, and beyond that kind of passive silence, openly to voice is rejection of such unlawful

153

https://www.state.gov/documents/organization/63562.pdf. Ibid, Section V., 15: preemptive self-defence. 155 Hannes Hofmeister, ‘Preemptive Strikes – A New Normative Framework’ (2006) 44 AVR 187-200; Hanspeter Neuhold, ‘Law and Force in International Relations – European and American Positions’ (2004) 64 ZaöRV/HJIL 263-279, 273-4; Peter Hilpold, ‘Die Vereinten Nationen und das Gewaltverbot’ (2005) 53 Vereinte Nationen 81-88; Johannes Schwehm, ‘Präventive Selbstverteidigung’ (2008) 46 AVR 368-405. 156 Bundestags-Drucksache 16/4368, 23 February 2007, 10. 157 http://gerhard-schroeder.de/frieden/irak-krieg/. 158 Bulletin der Bundesregierung 24-3, 19 March 2003; Bundestags-Drucksache 15/988, 16 May 2003, 2; Bundestags-Drucksache 17/1891, 28 May 2010, 2; Bundestags-Drucksache 17/3785, 15 November 2011, 3. 159 Federal Administrative Court, 21 June 2005, 2 WD 12.04 (2005) Europäische Grundrechte Zeitschrift 636. 160 See, for instance, statement of the Federal Government of 3 August 2004, BundestagsDrucksache 15/3635, 17. 161 YbILC 2001, Vol. II, Part Two, 26, taken note of by UNGA Resolution 56/83, 12 December 2001. 154

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operations. Concerning the annexation of Crimea in 2015,162 the German Government was and is adamant in its attitude of non-recognition; it explicitly states that it considered the annexation as constituting a breach of international law.163 Likewise, it has consistently maintained, in accordance with the 2004 advisory opinion of the ICJ, that Palestinian territory may not be seized and integrated into the Israeli territory.164

3.2

Naïveté

Naïveté is the second criticism that has been raised against Germany’s trust in international law.165 It is true that that German governmental institutions and German scholarship tend to construe international law not unlike domestic constitutional law. It does have some significance that, for instance, most of the great commentaries on the fundamental codifications in the field of international law have been launched by German initiative. The expectation prevails that indeed the imperative principles of international law will be generally heeded. In that perspective, factual impediments are often ignored. It may well be true that this tendency has something to do with the personal qualification of Germany’s international lawyers, who all have to teach constitutional law at the same time.166 Obviously, in many instances of international tensions, compromise solutions must be sought. However, the correct answer cannot be that legal norms are just political recipes of expediency that should be susceptible to change as required by the prevailing circumstances.167 A State like Germany cannot advocate such a strategy—which, however, should not degenerate into Kohlhaas-like obsession.168

162 See the symposium held by the Heidelberg Max Planck Institute on: ‘The Incorporation of Crimea by the Russian Federation in the Light of International Law’ (2015) 75 ZaöRV 3-214. 163 Statement of 24 November 2014, Bundestags-Drucksache 18/3361, 8. 164 Mostly, however, the Federal Government confined itself to criticizing the Israel settlement policy, see eg statement of Germany’s UN Ambassador in the Security Council, 15 September 2003, S/PV.4824; Governmental statements of 27 June 2008, Bundestags-Drucksache 16/9889, 3-6; 5 June 2009, Bundestags-Drucksache 16/13311, 2-4; 23 and 31 March 2010, BundestagsDrucksache 17/1298, 7. 165 Andrea Gattini, ‘Post 1945 German International Law and State Responsibility’ (2007) 50 GYIL 407, 411; Fred L. Morrison, ‘German Scholars in the Invisible College of International Lawyers’ (2007) 50 GYIL 445, 449; Michael Reisman, Book review, (1984) 78 AJIL 503, 505. 166 Observed also by foreign lawyers: Koskenniemi (n 110) 210. 167 Jack L. Goldsmith and Eric. A. Posner, The Limits of International Law (Oxford: OUP 2005). 168 About Heinrich von Kleist’s novel Michael Kohlhaas see https://en.wikipedia.org/wiki/ Michael_Kohlhaas. Original German text of 1810: Heinrich von Kleist, ‘Michael Kohlhaas’ in Sämtliche Werke und Briefe (München: Carl Hanser vol 2 2nd edn 1961) 9-103.

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German Overzeal?

A last issue concerns the wider implications of Article 25 BL. For almost 70 years now, Germany has experienced no difficulties in respecting the general rules of international law. Complex problems arise, however, as soon as demands are formulated according to which Germany, its institutional apparatus, should not content itself with heeding the prohibitions and restrictions rooted in the basic principles of the international legal order but should also act as a guarantor of those principles vis-à-vis other nations. The FCC has formulated fairly far-reaching requirements which it derives from Article 25 BL. With respect especially to cases of extradition, it has rightly observed that German authorities may not implement under their jurisdiction measures taken by foreign authorities that violate general rules of international law.169 It holds furthermore that under specific circumstances, German authorities may be obligated ‘to enforce international law within its jurisdiction where it is violated by other States’.170 Here, the FCC has gone to the outer limits of what can reasonably be required under international law. In diplomatic practice, challenges arise on an almost daily basis. Concerning the situation in the Middle East, Germany is bound on the one hand to respect and ensure the security of the State of Israel. On the other hand, the right of self-determination of the Palestinian people, recognized by the UN General Assembly as a State and thereby being placed under the protection of the general rules of international law, also requires respect. Is the balancing between those two principles a legal or just a political process? Where NATO partners use military bases in Germany for carrying out attacks against third countries, the question arises whether Germany can be held responsible for such operations with immediate consequences within the domestic legal order under Article 25 BL.171 Complex issues in connection with the concept of assistance in the commission of an internationally wrongful act need to be addressed in such circumstances.172 In any event, legal duties under Article 25 BL should not be extended beyond what is required under general international law. If anywhere in the world genocide is committed, Germany is called upon to do everything in its power to stop that egregious crime but is not required under international law to take retaliatory measures against the wrongdoing country.173 Political judgment is not dethroned. The general rules of international law should not, within the realm of German domestic law, take on a meaning that they do not

169

FCC, 31 March 1987, BVerfGE 75, 1, 19; 5 November 2003, BVerfGE 109, 13, 26, and BVerfGE 109, 38, 52; 26 October 2004, BVerfGE 112, 1, 27. 170 FCC, 26 October 2004, BVerfGE 112, 1, 26-7. 171 See statement by Federal Government, Bundestags-Drucksache 17/5586, 14 April 2011, 4, point 18. 172 For an exhaustive study of such issues see Helmut Philipp Aust, Complicity in Violations of International Humanitarian Law (Cambridge: CUP, 2015). 173 According to Article 41(2) of the ILC Articles on State Responsibility, YbILC 2001, Vol. II, Part Two, 26, the situation brought about by the crime shall not be recognized.

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have at the level of international relations. Indeed, a systemic danger can be perceived. If the substantive scope of Article 25 BL is extended too widely, Germany’s capacity reasonably to act in international relations might be severely compromised.174 In fact, proceeding from a correct interpretation of the present legal position, the German Government has never acknowledged a duty of assistance under a general rule of international law. Normally, general international law confines itself to generating negative duties.175 It is true that cooperation constitutes one of the seven principles recognized by the UN General Assembly as constituting the groundwork for the international legal order.176 However, the actual modalities of cooperation invariably need particularization through consensual instruments. In this sense, Germany bears a great deal of the burden to be shared for the development of the countries of extra-European continents, doing this generally on a voluntary basis. On the other hand, one of the provisions of the Basic Law, Article 16a, epitomizes the will of German society to leave the confines of established law by extending a helpful hand to persons persecuted by their home States. Article 16a BL establishes an individual right to be admitted as a refugee, surpassing the Convention Relating to the Status of Refugees,177 whose original aim was to grant a status of equality to persecuted persons after their recognition as refugees but not to provide a right to be admitted to the territory of a foreign country. In 1993, the generous promise of the asylum guarantee under the Basic Law was considerably restricted by the proviso that nobody arriving in Germany from another member country of the European Union or another safe country may invoke that guarantee. However, the European Union as a bloc has established a complex system of asylum178 by distributing the responsibility of compliance on its individual member States, extending the protection guarantee even by pledging to receive persons collectively threatened by developments during civil war (subsidiary protection).179 The practical experiences with those wide-ranging promises during the years from 2015 to 2017 evince that there are natural limits to what a population is prepared to accept as a burden of

Rightly, Jochen von Bernstorff, ‘Extraterritoriale menschenrechtliche Staatenpflichten und Corporate Social Responsibility’ (2011) 49 AVR 34-63, cautions against over-extending the duty of States to monitor private corporations on account of their activities outside the national territory. 175 See Christian Tomuschat, ‘Positive Duties under General International Law’ in Marten Breuer and others (eds), Der Staat im Recht. Festschrift für Eckart Klein (Berlin: Duncker & Humblot 2013) 923-937. 176 GA Resolution 2625 (XXV), 24 October 1970, Principle 4. 177 Of 25 July 1951, 189 UNTS 137. 178 Its powers are laid down in Articles 77 to 80 of the Treaty on the Functioning of the European Union (TFEU). 179 Directive no. 2004/83/EU of 29 April 2004 on Minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12. 174

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international solidarity.180 Fleeing political persecution may easily turn into mass migration, which cannot be dealt with through the classic asylum procedures.181 At worldwide level, the New York Declaration for Refugees and Migrants, adopted by General Assembly Resolution 71/1 of 19 September 2016, has attempted to activate the moral conscience of humankind as an act of self-commitment of all States but will have to prove its real strength against all the odds of economic and cultural difficulties. Two years later, the whole set of rules was again approved by the General Assembly under the title ‘Global Compact on Refugees’.182 But its status has remained unchanged—that of a recommendation without any binding effect, notwithstanding its political weight.183 In connection with the preceding observations, the tendency of German judges to deal with disputes of an intergovernmental character deserves being highlighted. Since Article 25 BL extends the relevant rights and obligations to the individual human being, the judges have been encouraged to grant remedies to persons affected by transborder activities wishing to introduce judicial proceedings by invoking the legal implications of that article. To many international lawyers, the judgment of the Court of Justice of the European Union in Van Gend & Loos184—where objective obligations of States were turned into individual entitlements—constitutes the ideal situation they wish to attain. To date, these endeavours have not been successful with regard to such general principles as non-use of force and non-intervention185 notwithstanding the failure of the German jurisprudence to develop a political-question or an act-of-State doctrine.186 Generally, the German courts, including the Federal Constitutional Court, have taken the view that individuals cannot claim any rights 180

In case C-638/16 PPU, X and X v. Belgium, 7 March 2017, the EU Court of Justice rejected the suggestion by Advocate General Mengozzi of 7 February 2017 that entry visas must be granted on humanitarian grounds to persons wishing to make an application for asylum on the territory of one of the member States of the EU. 181 Calling for a thorough review of the entire asylum regime Hans-Peter Schwarz, Die neue Völkerwanderung nach Europa. Über den Verlust politischer Kontrolle und moralischer Gewissheiten (München: Deutsche Verlags-Anstalt 2017). Condensed version: ‘Plädoyer für eine radikale Wende’ Welt am Sonntag (Berlin, 12 March 2017) 13-16. 182 UNGA Res 73/151, 17 December 2018. 183 For a comment see Christian Tomuschat, ‘Der UN-Migrationspakt’ in Thomas Groh and others (eds), Verfassungsrecht; Völkerrecht, Menschenrechte – Vom Recht im Zentrum der Internationalen Beziehungen - Festschrift für Ulrich Fastenrath (Heidelberg: C.F. Müller 2019) 207-222. 184 Case 26/62, [1963] ECR 3. 185 See eg the judgment of the Administrative Tribunal of Cologne, 14 July 2011, 26 K 3869/10, referenced (2015) 75 ZaöRV/HJIL 907: No individual claims can be derived from the ban on the use of force. 186 Thus, the Bavarian Administrative Court of Appeal determined under its own responsibility that Nagorny Karabach is a constituent part of Azerbaijan: judgments of 17 March 2011, 2 B 07.30272, and 14 April 2011, 2 B 07.30242, referenced in (2015) 75 ZaöRV/HJIL 872. To date, the culmination point of the jurisprudence concerning foreign relations matters was the judgment of the Federal Administrative Court of 21 June 2005 (n 154) ruling that the US and UK attack on Iraq constituted a breach of international law.

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from a violation of international humanitarian law, such rights accruing solely to an injured State.187 In this regard, the Federal Constitutional Court holds on to the traditional distinction between international and domestic law.188 In the German Foreign Office, the question as to whether a planned action is compatible with international law is invariably taken very seriously and not dealt with as an inconvenient or annoying formality. International law is observed as a truly binding normative proviso for external action.189

4 Legal Key Concepts of Germany’s Foreign Policy A last section should be devoted to some legal paradigms that play a particularly important role in Germany’s foreign policy. Everyone only faintly familiar with German history knows that Germany, its public institutions as well as the public at large, felt deeply wounded by the conditions of the Treaty of Versailles, which it had to accept after its military defeat in 1918. The Treaty was seen not only as discriminatory but outright as an instrument of humiliation.190 Although in the later years of the Weimar Republic the climate of tension receded gradually, the trauma of the Treaty of Versailles remained vivid in German memory. The newly reconstituted Government of the Federal Republic of Germany accepted—and had to accept—the legal regime of occupation. It did not like it, but it never attempted to subvert it. But it consistently denied that the victorious Allied Powers were entitled to dispose of German territory, insisting that the general rules of international law were also applicable to the defeated State.191 In the subsequent years, it was one of the main

187

See Federal Supreme Court, 26 June 2003, BGHZ 155, 279, English translation: (2003) 42 ILM 1030; FCC, 7 December 2004, BVerfGE 112, 93, 106-117. 188 This view has been consistently maintained by the Federal Government vis-à-vis reparation claims raised with regard to violations of humanitarian law committed during World War II, Bundestags-Drucksache 17/6539, 6 July 2011, 2, and also with regard to occurrences in Afghanistan in more recent times, Bundestags-Drucksache 17/1523, 26 April 2010, 2, and BundestagsDrucksache 17/8120, 12 December 2011, 2. 189 See Gerd Westdickenberg (former Head of Legal Department of German Foreign Office) ‘The Role of the Legal Adviser in the German Federal Foreign Office in Comparison to Some Other Aspects of the Role of Legal Adviser in Other Countries’ in Société francaise pour le droit international (edn), Comparative International Law Practice in France & Germany (Paris: Pedone 2011) 35-49. 190 See Koskenniemi (n 110) 236-8; Detlev F. Vagts, ‘International Law in the Third Reich’ (1990) 84 AJIL 661, 664. 191 A Leitmotif were the introductory words (Geleitwort) of the two most renown international lawyers of post-war Germany, Rudolf Laun and Hermann von Mangoldt, (1948) 1 Jahrbuch für Internationales und ausländisches öffentliches Recht 3-5, 4, who pleaded for the re-admission of Germany to the circle of civilized nations as a partner in full equality. See also the resolution of the German international lawyers adopted at their first meeting after World War II in Hamburg, 16 to 17 April 1947, ibid 6, para. 3. See also Mosler (n 9) 29.

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aims of the Federal Government to achieve full equality in all international treaty regimes, in particular with its European partners and eventually also at world level. This aim was reached in the European integration process where, starting with the European Community of Coal and Steel, Germany obtained the rights of a fullfledged member without any differentiation. Similarly, Germany was welcomed as a member à part entière within NATO. The only visible sign of discrimination is the enemy State clauses of the UN Charter (Articles 53 and 107), still remaining in the text but having become substantively obsolete and bound to disappear soon also in a formal way. Just to observe and respect international law is not enough for a State that aims to improve the general situation in international relations. For that purpose, active use must be made of the opportunities for cooperation at the international level. Germany has always shown its readiness to engage to the extent of its capabilities in any sensible projects, recognizing the relevant clauses of the UN Charter as significant guidelines. Writing in 2020, one may say that Germany is a member of the international community in full compliance with its obligations under international law. Its Government as well as its people know perfectly well that the environment of general international law ushered in by the UN Charter is beneficial to a nation that depends largely on international cooperation in all sectors of societal activity, not only in trade and commerce. Great challenges are lying ahead in a future when demographic developments on other continents will require an enhanced degree of active assistance to those in need. The classic framework of general international law encompasses a full set of negative duties comparable to the civil liberties in the field of human rights. Those classic principles will not suffice to maintain a situation of peaceful relations in a world characterized by growing discrepancies in material well-being between rich and poor countries, enhanced by the looming climate change. To adapt to such a changing structure of international law will demand much more incisive sacrifices than the present-day regime, according to which law-abiding means hardly anything more than to stay calm and quiet.

References Völkerrecht. Lehrbuch, written by a collective group of authors (2nd edn in two parts Staatsverlag der DDR 1981 and 1982). Abi Saab G, ‘The Third World and the Future of the International Legal Order’ (1973) Revue égyptienne de droit international 27-66. Anand P, ‘The International Court of Justice and the Development of International Law’ (1965) 7 International Studies 228-261. Anschütz G, Die Verfassung des Deutschen Reichs vom 11. August 1919 (14th edn Georg Stilke 1933). Arnauld A, Völkerrecht (2nd edn C.F. Müller 2014). Aust HP, Complicity in Violations of International Humanitarian Law (CUP 2015). Bernhardt R and Oellers-Frahm K, Das Max-Planck-Institut für ausländisches öffentliches Recht und Völkerecht. Geschichte und Entwicklung von 1949 bis 2013 (Springer 2018).

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Bernstorff J Von, ‘Extraterritoriale menschenrechtliche Staatenpflichten und Corporate Social Responsibility’ (2011) 49 AVR 34-63. Bilfinger C, ‘Der Streit um das Völkerrecht’ (1944) 12 ZaöRV 1-33. Bilfinger C, ‘Friede durch Gleichgewicht der Macht?’ (1950) 13 ZaöRV 27-51. Blanke HJ and Falkenberg L, ‘Is There State Immunity in Case of War Crimes Committed in the Forum State?’ (2013) 14 German Law Journal 1817-1850. Bluntschli JC, Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt (Nördlingen 1868). Böttner R, ‘Von Nürnberg über Rom nach Kampala’ (2013) 51 AVR 201-238. Bogdandy A von, ‘Constitutionalism in International Law: Comment on a Proposal for Germany’ (2006) 47 Harvard International Law Journal 223-242. Borchmeyer D, Was ist deutsch? (Rowohlt 2017). Bothe M, ‘Remedies of Victims of War Crimes and Crimes against Humanities: Some Critical Remarks on the ICJ’s Judgment on the Jurisdictional Immunity of States’ in A Peters and others (eds) Immunities in the Age of Global Constitutionalism 99-115. Bracher KD, ‘Final Observations’ in id (ed) Deutscher Sonderweg, Mythos oder Realität? (Oldenbourg 1982). Cassese A, International Law in a Divided World (Clarendon Press 1986). Chimni BS, ‘Third World Approaches to International Law: a Manifesto’ (2006) 8 International Community Law Review 3-27. Cremer HJ, ‘Allgemeine Regeln des Völkerrechts’ in J Isensee and P Kirchhof (eds), Handbuch des Staatsrechts Vol. XI (3rd edn C.F. Müller 2013) 369-411. Daillier P and others, Droit international public (8th edn L.G.D.J. 2009). Diggelmann O and Altwicker T, ‘Is There Something Like a Constitution of International Law?’ (2008) 68 ZaöRV 623-650. Doehring K, Völkerrecht (2nd edn C.F. Müller 2004). Douglas RM, Orderly and Humane – The Expulsion of the Germans after the Second World War (New Haven Press 2012). Dumberry P, ‘Incoherent and Ineffective: The Concept of Persistent Objector Revisited’ (2010) 59 ICLQ 779-802. Eick C, ‘Die Anerkennung der obligatorischen Gerichtsbarkeit des Internationalen Gerichtshofs durch Deutschland’ (2008) 68 ZaöRV 763-777. Eyffinger A, The 1899 Hague Peace Conference. The Parliament of Man, the Federation of the World (Kluwer Law International 1999). Fassbender B, ‘Denkschulen im Völkerrecht’ (2012) 45 Berichte der Deutschen Gesellschaft für Völkerrecht 1-31. Finke J, ‘Sovereign Immunity: Rule, Comity or Something Else?’ (2011) 21 EJIL 853-881. Frowein JA, ‘Konstitutionalisierung des Völkerrechts’ (2000) 39 Berichte der Deutschen Gesellschaft für Völkerrecht 427-447. Gärditz KF, ‘Ungeschriebenes Völkerrecht durch Systembildung’ (2007) 45 AVR (2007) 1-34. Gattini A, ‘Post 1945 German International Law and State Responsibility’ (2007) 50 GYIL 407-414. Geiger R, Grundgesetz und Völkerrecht (6th edn Beck 2013). Giegerich T and Zimmermann A, ‘“Typisch Deutsch . . .”: Is There a German Approach to International Law?’ (2007) 50 GYIL 15-27. Goldsmith JL and Posner EA, The Limits of International Law (OUP 2005). Graefrath B, Zur Stellung der Prinzipien im gegenwärtigen Völkerrecht (Akademie-Verlag 1968). Green JA, The Persistent Objection Rule in International Law (OUP 2016). Grewe WG (ed), Sources Relating to the History of the Law of Nations, Vol. 3/1: 1815-1945 (Walter de Gruyter 1992). Gürke N, Grundzüge des Völkerrechts, 2nd edn revised by O Koellreutter (Spaeth & Linde 1942).

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Haltern U, ‘Tomuschats Traum: Zur Bedeutung von Souveränität im Völkerrecht’ in P-M Dupuy and others (eds), Common Values in International Law. Essays in Honour of Christian Tomuschat (N.P. Engel 2006) 867-898. Hart HLA, The Concept of Law (2nd edn Clarendon Press 1964). Hartwig M, ‘Vom Dialog zum Disput?’ (2017) 44 EuGRZ 1-23. Heffter AW, Das Europäische Völkerrecht der Gegenwart (Berlin 1844). Heffter AW and FH Geffcken, Das Europäische Völkerrecht der Gegenwart (8th ed Berlin 1888). Hegel GWF, Grundlinien des Philosophie des Rechts (Berlin 1821). Hilpold P, ‘Reforming the United Nations: New Proposals in a long-lasting Endeavour’ (2005a) 52 NILR 389-431. Hilpold P, ‘Die Vereinten Nationen und das Gewaltverbot’ (2005b) 53 Vereinte Nationen 81-88. Hilpold P, ‘Ukraine, Crimea and New International Law: Balancing International Law with Arguments Drawn from History’ (2015) 14 Chinese Journal of International Law 237-270. Hofmeister H, ‘Preemptive Strikes – A New Normative Framework’ (2006) 44 AVR 187-200. Hoof G.J.H. von, Rethinking the Sources of International Law (Kluwer 1983) 139. Ipsen K, ‘International Legal Scholarship in West Germany after World War II’ (2007) 50 GYIL 111-137. Jouin C, ‘Le droit international allemand dans l’entre-deux-guerres. La fuite dans l’histoire (2010) 114 RGDIP 535-561. Kadelbach S and Kleinlein T, ‘Überstaatliches Verfassungsrecht. Zur Konstitutionalisierung im Völkerrecht’ (2006) 44 AVR 235-266. Kapustin A, ‘Crimea’s Self-Determination in the Light of Contemporary International Law’ (2015) 75 ZaöRV 101-118. Kleinlein T, Konstitutionalisierung im Völkerrecht. Konstruktion und Elemente einer idealistischen Völkerrechtslehre (Springer 2012). Kleist H von, Michael Kohlhaas, original edition 1810 (Collected works vol 2 2nd ed Hanser 1961) 9-103. Kloth M and Brunner M, ‘Staatenimmunität im Zivilprozess bei gravierenden Menschenrechtsverletzungen’ (2012) 50 AVR 219-243. Koskenniemi M, The Gentle Civilizer of Nations. The Rise and Fall of International Law 18701960 (CUP 2002). Krajewski M and Singer C, ‘Should Judges Be Front-Runners? The ICJ, State Immunity and the Protection of Fundamental Human Rights’ (2012) 16 Max Planck Yearbook of United Nations Law 1-34. Kreß C, ‘Germany and the Crime of Aggression’ in S Linton and others (eds), For the Sake of Present and Future Generations: Essays on International Law, Crime and Justice in Honour of Roger S. Clark (Brill Nijhoff 2015) 31-51. Krzan B, ‘Frieden und Gerechtigkeit nach der Kampala-Konferenz’ (2010) 48 AVR 467-485. Küper W, ‘August Wilhelm Heffter (1796-1880). Ein preußischer Kriminalist und Universaljurist im 19. Jahrhundert’ in S Grundmann and others (eds), Festschrift 200 Jahre Juristische Fakultät der Humboldt-Universität zu Berlin (De Gruyter 2010) 179-203. Lange F, ‘Carl Bilfingers Entnazifizierung und die Entscheidung für Heidelberg’ (2014) 74 ZaöRV 697-730. Lasson A, Princip und Zukunft des Völkerrechts (Berlin 1871). Laun R and von Mangoldt H, ‘Geleitwort’ (1948) 1 Jahrbuch für Internationales und ausländisches öffentliches Recht 3. Liszt F v., Das Völkerrecht (Berlin 1898). Liszt F v. and Fleischmann M, Das Völkerrecht (12th ed Springer 1925). Mälksoo L, Book review (2012) 50 AVR 245-6. Mendelson M, ‘The Formation of Customary International Law’ (1999) 272 Hague Academy of International Law Collected Courses 155-410. Morrison FL, ‘German Scholars in the Invisible College of International Lawyers’ (2007) 50 GYIL 445-455.

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Mosler H, ‘Völkerrecht als Rechtsordnung’ (1966) 36 ZaöRV 6-49. Münch I von (ed), Dokumente des geteilten Deutschland (Alfred Kröner 1968). Neuhold H, ‘Law and Force in International Relations – European and American Positions’ (2004) 64 ZaöRV 263-279. Oellers-Frahm K, ‘State Immunity vs. Human Rights’ in Mensch und Recht. Festschrift für Eibe Riedel (Duncker & Humblot 2013) 389-399. Oppenheim L and Lauterpacht H, International Law. A Treatise, Vol. I (8th edn Longmans 1955). Orakhelashvili A, ‘Natural Law and Customary Law’ (2008) 68 ZaöRV 69-110. Panara C, ‘Offene Staatlichkeit: Italien’ in A von Bogdandy and others (eds), Handbuch Ius Publicum Europaeum Vol. II (C.F. Müller 2008) 143. Pandelli Fachiri A, The Permanent Court of International Justice. Its Constitution, Procedure and Work (Clarendon Press 1925). Payandeh M, ‘Staatenimmunität und Menschenrechte’ (2012) 67 Juristenzeitung 949-958. Paulus AL, Die internationale Gemeinschaft im Völkerrecht (C.H. Beck 2001). Pellet A and Müller D, Comments on Article 38 in A Zimmermann and others (eds), The Statute of the ICJ. A Commentary (3rd edn OUP 2019). Peters A, ‘There is Nothing More Practical than a Good Theory: An Overview of Contemporary Approaches to International Law’ (2001) 44 GYIL 25-37. Peters A, ‘Die Zukunft der Völkerrechtswissenschaft: Wider den epistemischen Nationalismus’ (2007) 67 ZaöRV 721-776. Peters A, ‘Are We Moving towards Constitutionalization of the World Community?’ in A Cassese (ed), Realizing Utopia (OUP 2012) 118-135. Petersen N, ‘Der Wandel des ungeschriebenen Völkerrechts im Zuge der Konstitutionalisierung’ (2008) 46 AVR 502-523. Petersmann EU, Multilevel Constitutionalism for Multilevel Governance of Public Goods (Hart 2017). Reisman M, Book review (1984) 78 AJIL 503. Rodríguez Cedeňo V and Torres Cazorla MI, ‘Unilateral Acts of States in International Law’ in MPIL Encyclopedia of Public International Law Vol. X (OUP 2012). Ruiz Fabri H, ‘La France et la convention de Vienne sur le droit des traités’: éléments de réflexion pour une éventuelle ratification’ in G Cahin and others (eds), La France et le droit international (Pedone 2007) 137-167. Saiz Arnaiz A and Alcoberro Llivina C (eds), National Constitutional Identity and European Integration (Intersentia 2013). Schecher L, Deutsches Außenstaatsrecht (Junker & Dünnhaupt 1933). Schenk von Staufffenberg B, Statut et Règlement de la Cour permanente de Justice internationale (Carl Heymanns 1935). Scheuner U, ‘Naturrechtliche Strömungen im heutigen Völkerrecht’ (1950) 13 ZaöRV 556-614. Schmitt C, Völkerrechtliche Großraumordnung mit Interventionsverbot für raumfremde Mächte. Ein Beitrag zum Reichsbegriff im Völkerrecht (4th edn Deutscher Rechtsverlag 1941). Schmoeckel M, Die Großraumtheorie: ein Beitrag zur Geschichte der Völkerrechtswissenschaft im Dritten Reich, ins besondere der Kriegszeit (Duncker & Humblot 1993). Schorkopf F, Staatsrecht der internationalen Beziehungen (C.H. Beck 2017) Schwarz HP, Die neue Völkerwanderung nach Europa. Über den Verlust politischer Kontrolle und moralischer Gewissheiten (Deutsche Verlags-Anstalt 2017). Schwehm J, ‘Präventive Selbstverteidigung’ (2008) 46 AVR 368-405. Schweisfurth T, Völkerrecht (Mohr Siebeck 2006). Schweisfurth T, ‘The Science of Public International Law in the German Democratic Republic’ (2007) 50 GYIL 149-200. Shaw M, International Law (5th edn CUP 2003). Silagi M, ‘Die allgemeinen Regeln des Völkerrechts als Bezugsgegenstand in Art. 25 GG und Art. 26 EMRK’ (1980) EuGRZ 632-653.

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Simma B and Alston P, ‘The Sources of Human Rights Law: Custom, Jus cogens, and General Principles’ (1992) 12 Australian Year Book of International Law 82-108. Sommermann KP, ‘Offene Staatlichkeit: Deutschland’ in A von Bogdandy and others (eds), Handbuch Ius Publicum Europaeum, Vol. II (C.F. Müller 2008) 3-35. Spiermann O, ‘Historical Introduction’ in A Zimmermann and others (eds), The Statute of the International Court of Justice 49-50. Stolleis M, ‘Against Universalism – German International Law under the Swastika’ (2007) 50 GYIL (2007) 91-110. Streinz R, comments on Article 25 in M Sachs (ed), Grundgesetz Kommentar (Beck 7th ed 2014). Talmon S, ‘Die Grenzen der Anwendung des Völkerrechts im deutschen Recht’ (2013) 68 Juristenzeitung 12. Teubner G, ‘Globale Zivilverfassungen: Alternativen zur staatszentrierten Verfassungstheorie’ (2003) 63 ZaöRV 1-28. Tolstykh L, ‘Three Ideas of Self-Determination in International Law and the Reunification of Crimea with Russia’ (2015) 75 ZaöRV 119-139. Tomuschat C, ‘Der Verfassungsstaat im Geflecht der internationalen Beziehungen’ (1978) 36 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 7-63. Tomuschat C, comments on Article 24 BL, Bonner Kommentar zum Grundgesetz (Hansischer Gildenverlag 1985). Tomuschat C, ‘Die internationale Gemeinschaft’ (1995) 33 AVR 1-20. Tomuschat C, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999) 281 Hague Academy of International Law Collected Courses. Tomuschat C, ‘World Order Models: a Disputation with B.S. Chimni and Yasuaki Onuma’ 2006 (8) International Community Law Review 71-79. Tomuschat C, ‘What is “general international law’ in Guerra y Paz: 1945-2009. Obra Homenaje al Dr. Santiago Torres Bernárdez (Universidad del País Vasco 2010a) 329-348. Tomuschat C, ‘Terminal of the European Integration Process?’ (2010b) 70 ZaöRV 251-282. Tomuschat C, ‘Staatsrechtliche Entscheidung für die internationale Offenheit’ in J Isensee and P Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. XI (3rd edn C.F. Müller 2013a) 3-61. Tomuschat C, ‘Democracy and the Rule of Law’ in D Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP 2013b) 469-496. Tomuschat C, ‘Positive Duties under General International Law’ in M Breuer and others (eds), Der Staat im Recht. Festschrift für Eckart Klein (Duncker & Humblot 2013c) 923-937. Tomuschat C, ‘The National Constitutional Trumps International Law’ (2014a) 6 Italian Journal of Public Law 189-196. Tomuschat C, Human Rights – Between Idealism and Realism (3rd edn OUP 2014b). Tomuschat C, ‘General International Law: A New Source of International Law?’ in R Pisillo Mazzeschi and P De Sena (eds), Global Justice, Human Rights and the Modernization of International Law (Springer 2018) 185-204. Tomuschat C, comments on Article 25 in Bonner Kommentar zum Grundgesetz (C.F. Müller 2019a). Tomuschat C, ‘Der UN-Migrationspakt’ in T Groh and others (eds), Verfassungsrecht; Völkerrecht, Menschenrechte – Vom Recht im Zentrum der Internationalen Beziehungen - Festschrift für Ulrich Fastenrath (C.F. Müller 2019b) 207-222. Tomuschat C, ‘Konstitutionalisierung des Völkerrechts durch die Vereinten Nationen’ in E Grothe and A Schlegelmilch (eds), Constitutional Moments (Berliner Wissenschafts-Verlag 2020) 185-203. Uerpmann-Witzack R, ‘Serious Human Rights Violations as Potential Exceptions to Immunity: Conceptual Challenges’ in A Peters and others (eds), Immunities in the Age of Global Constitutionalism (Brill Njjhoff 2014) 236-243. Vagts DF, ‘International Law in the Third Reich’ (1990) 84 AJIL 661-704. Verdross A, Völkerrecht (Julius Springer 1937).

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Virally M, ‘The Sources of International Law’ in M Sorensen (ed), Manual of Public International Law (Macmillan 1968) 116-174. Vogel K, Die Verfassungsentscheidung des Grundgesetzes für eine internationale Zusammenarbeit: ein Diskussionsbeitrag zu einer Frage der Staatstheorie sowie des geltenden deutschen Staatsrechts (Mohr 1964). Walter M, ‘Integrationsgrenze Verfassungsidentität – Konzept und Kontrolle aus europäischer, deutscher und französischer Perspektive’ (2012) 72 ZaöRV 177-200. Walter C, ‘Der Internationale Menschenrechtsschutz zwischen Konstitutionalisierung und Fragmentierung’ (2015) 75 ZaöRV 753-770. Weiß W, ‘Rechtsquellen des Völkerrechts in der Globalisierung: Zu Notwendigkeit und Legitimation neuer Quellenkategorien’ (2015) 53 AVR 220-251. Westdickenberg G, ‘The Role of the Legal Adviser in the German Federal Foreign Office in Comparison to Some Other Aspects of the Role of Legal Adviser in Other Countries’ in Société francaise pour le droit international (ed), Comparative International Law Practice in France & Germany (Pedone 2011) 35-49. Wood M, ‘”Constitutionalization” of International Law: A Sceptical Voice’ in KH Kaikobad and M Bohlander (eds), International Law and Power. Perspectives on Legal Order and Justice: Essays in Honour of Colin Warbrick (Martinus Nijhoff 2009) 85-97. Zorn P, ‘Das Deutsche Gesandtschafts-, Konsular und Seerecht’ (1882) Annalen des Deutschen Reichs 81. Zorn P, Die Zukunft des Völkerrechts (Berlin:1918).

The ‘Austrian School of International Law’: The Influence of Austrian International Lawyers on the Formation of the Present International Legal Order Heribert Franz Koeck

Is there an Austrian cuisine? The great variety of dishes served in different Austrian regions would call for a negative answer. Is there an Italian cuisine? Anyone who has had the opportunity to compare dishes from Piedmont with those from Lombardy or Venetia, from Florence with those from Rome or even from Naples with those from Sicily—where again every part has its specialty—will probably deny this. Yet you can find definitions of ‘Italian cuisine’ in any encyclopaedia and quite a number of recipe books on Italian cuisine in any bookstore. The same is true for the Austrian cuisine. These contradictory findings can be explained by the fact that certain dishes have worldwide become more popular than others and are therefore regarded as ‘typically’ Italian or ‘typically’ Austrian—on the one hand, pizza1 and pasta,2 tiramisù3 and espresso4 (not to forget Parmigiano5 and Chianti6) and, on the other, Wiener Schnitzel7 and Tafelspitz,8 Apfelstrudel9 and Kaiserschmarrn10 or—perhaps—

A yeasted flatbread generally topped with tomato sauce and cheese and baked in an oven. Pasta is made from an unleavened dough of a durum wheat flour mixed with water or eggs and formed into sheets or various shapes, then boiled. 3 Ladyfingers dipped in coffee, layered with a whipped mixture of eggs, sugar, and mascarpone cheese, flavored with cocoa. 4 Strong black coffee. 5 Parmigiano cheese. 6 Red wine produced in the Chianti region, in central Tuscany. 7 Bread crumbed and fried veal or pork scallop. 8 Boiled beef with garnishes. 9 Apple strudel. 10 Cut-up and sugared pancake with raisins. 1 2

H. F. Koeck (*) Johannes Kepler University Linz Law, Faculty of Law, Linz, Austria © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 P. Hilpold (ed.), European International Law Traditions, https://doi.org/10.1007/978-3-030-52028-1_3

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Salzburger Nockerl11 (not to forget Liptauer12 and Grüner Veltliner13). But while it would be difficult to trace back all the familiar Italian dishes to just a single region, the just-mentioned Austrian dishes are all typically Viennese (which, except of course the Salzburger Nockerl, disclose their different place of origin by their name), and for this reason the Austrian cuisine is most often associated with the Viennese cuisine, notwithstanding significant regional variations. What is true for the Austrian cuisine applies also to the Austrian School of International Law. The Austrian School of International Law is most often associated with the Vienna School of International Law, notwithstanding the fact that there are law schools not only in Vienna but also in Graz, Innsbruck, Salzburg and Linz, all with curricula comprising the law of nations as a mandatory subject. All those teaching and doing research in this field must be regarded as Austrian international lawyers. But not all of them can justly claim to form part of the Austrian School of International Law in the specific sense of being in the tradition of the Vienna School of International Law, a tradition that, of course, today is neither limited to Vienna nor necessarily particularly cultivated there. It is a specific feature of the Vienna School of International Law that its main exponents did not content themselves with a pragmatic approach to their subject that would have permitted them to take the existence of a body of rules governing the relations among states for granted and not to worry about the grounds of their validity and thus their binding force. The Vienna School of International Law has become famous for its foundation in legal theory and legal philosophy, the former connected with Hans Kelsen (1881–1973) and the latter with Alfred Verdross (1890–1980). Of course, there have been international lawyers in Vienna before and after those two scholars, but the distinctive character of the Vienna School of International Law originated with Kelsen and culminated with Verdross. Hans Kelsen was a positivist, and as an agnostic he had no alternative. But his intellectual honesty prevented him from considering positive law as a self-sufficient order. He distanced himself from—what he called—naïve positivists and claimed to be a critical positivist, distinguished from the former by the quest for a rule that— even if it could not serve as a firm (i.e. real) fundament for the legal order—could at least justify dealing with it on a hypothetical basis. For this purpose, he invented the hypothetical basic norm (hypothetische Grundnorm), which was not, however, a verifiable hypothesis but a mere fiction. Kelsen tried to offset this shortcoming of his approach, which he could not help philosophocally by an until then unknown rigidity of legal theory in which he dealt with legal rules in an exclusively formal manner and a strict methodical purism

11

A sweet soufflé served as a dessert. A spicy cheese spread made with butter and cottage cheese. 13 Dry white wine grown primarily in the Eastern parts of Austria. 12

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which he presented in his Pure Theory of Law.14 Kelsen’s most important contribution to international law was based on the insight that rules that belong to different and unrelated normative orders cannot be both considered legal rules because logically only one of these orders can claim to be law. This was a remarkable position at a time when the prevailing doctrine asserted just the opposite. In order to better understand what the dispute was all about, we have to ask for the ‘setting in life’ of this dispute. (I use the term ‘setting in life’, a translation from the German term ‘Sitz im Leben’, for the context in which a certain event took place, a certain text was written or a certain problem arose.) Here, the problem was the correct determination of the relationship between international law and domestic law, and the context was constituted by discrepancies between the former and certain laws and legal practices of the German Reich. At the time, the basic book on this issue was Heinrich Triepel’s International Law and Domestic Law.15 In order to defend the Reich’s position, Triepel took the view that international law and domestic law were two completely separate legal orders that had no common touch points. Triepel tried to demonstrate this ratione personae, ratione iuris creationis and ratione rerum. As regards the first difference, Triepel argued that the subjects of international law were states and the subjects of domestic law human beings. With regard to the second, Triepel stated that international law was freely created by the states in their interaction, be it through the conclusion of treaties, be it through state practice resulting in customary law, while domestic law was created by a legislator and imposed upon individuals even against their will. And as concerns the third difference, Triepel asserted that international law governed international situations while domestic would govern domestic situations. For Triepel, the question whether a domestic court or administrative authority should apply in the case of conflict, domestic law or international law, was moot because no such conflict could ever arise. Triepel’s theory seemed to indicate a way out of the dilemma between the complete denial of the existence of international law in the tradition of Georg Wilhelm Friedrich Hegel, who regarded (what was called) international law merely as the external law of state and the recognition of the binding character of international law. For Hegel, international law was without any inherent binding force because the state could repeal its external law no less than its internal law. But deference to international law had become fashionable—today we would say politically correct—at the time of the First World Peace Conference in The Hague (1899), when the international community sought to substitute peaceful settlement of international disputes for war. For Hegel, state action could be justified not by its compliance with any—non-existent—international law but only by its success as it would turn out at the end of an epoch. For him (taking up a word of Friedrich von

14

Hans Kelsen, Reine Rechtslehre, (1st ed. Leipzig and Vienna: Deuticke 1934); 2nd ed. Vienna: Deuticke 1960; Pure Theory of Law English translation of the 1960 edition by Max Knight (Berkeley: University of California Press, 1967). 15 Völkerrecht und Landesrecht, Leipzig: C.L. Hirschfeld, 1899.

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Schiller), world history was world judgment. Hegel had written his Elements of the Philosophy of Right16 in 1821, still under the impression of the Napoleonic wars, and the wars that led to the unification of Italy and Germany between 1859 and 1871 were again manifestations of power politics, condensed in Otto von Bismarck’s tenet of political creed that the great questions of the day will be decided ‘not through speeches and majority decisions but by iron and blood’.17 But at the turn of the nineteenth to the twentieth century, a substantial part of the public had become wary of power politics and craved for peaceful conflict settlement on the basis of law. It had thus become difficult for any country just to state that it did not care for international law, even for the German Reich at the time, which was considered Europe’s dominant continental power. What could then be more comfortable for German judges and magistrates than to be told that they need not care for international law because there could be no conflict between it and German law? Of course, there was an elementary flaw in Triepel’s theory. While the difference between international law and domestic law ratione personae and ratione iuris creationis can be accepted for the time being, the difference ratione rerum does not exist in all cases. On the contrary, there are areas that have traditionally been the object of regulation both by domestic and by international laws, in particular the treatment of diplomatic and consular representatives by the receiving state and the treatment of foreign nationals by the state of sojourn. Many international disputes have arisen from these areas, as any review of international judgments and arbitral awards can show. Denial of conflicts between international law and domestic law is not the solution. Such conflicts must not be negated; they have to be resolved. Kelsen’s monistic approach was based on simple logic. There can be only one system of rules that can claim to be law, and—the other way round—all rules that claim to be legal rules cannot but belong to one and the same legal order. This, of course, satisfied only the theoretical mind that was occupied with the possibility or impossibility of two unrelated legal orders. It did not decide the practical problem that one should take precedence in a case of conflict, domestic law or international law. Kelsen could not be expected to answer this question. As a positivist for whom a reasonable—as distinct from a logical—answer was something beyond his methodological horizon, he was unable to give an opinion. From the point of view of legal theory, both options were feasible: monism with the primacy of international law and monism with the primacy of domestic law. It fell to Alfred Verdross to give a reasonable answer. Alfred Verdross was himself a disciple of Hans Kelsen, whose seminars he had attended during his legal studies at the University of Vienna and whose theory of law impressed him.

16

Grudlinien der Philsophie des Rechts (Berlin: Nicolaische Buchhandlung, 1821 [1820]). Transl. by T. M. Knox, 1942; transl. by H. B. Nisbet, ed. Allen W. Wood, 1991. 17 Otto von Bismarck, Reden 1847-1869 [Speeches, 1847-1869], ed., Wilhelm Schüßler, vol. 10, Bismarck: Die gesammelten Werke [Bismarck: Collected Works], (ed. Hermann von Petersdorff. Berlin: Otto Stolberg, 1924-35), pp. 139-40. (Translation by Jeremiah Riemer)

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But although the doctrine of public international law was then completely under the influence of legal positivism, acceptance of the monistic approach required a workable answer to the primacy alternatives. Yet so strong was the etatist (state-oriented) thinking of the time that Alfred Verdross adopted, in his early writings, monism with the primacy of domestic law. The idea behind this position was that once a state had recognised international law as a binding body of law, this state’s judicial and administrative institutions were bound to apply it. The question of whether the state’s legislative organs were also bound by international law was left open, but from Verdross’ concept—the binding force of international law depended on its recognition by the state—a negative answer was clearly indicated. In order to secure primacy of international law even vis-à-vis a state’s legislation would have required acceptance of some legal figure like Triepel’s common will (Gemeinschaftswille) which is formed by the concordant subjective wills of the states but endures as an objective entity even if one or the other state’s subjective will does no longer exist. It is necessary to recall that the period of positivism—the predominance of which lasted until World War II—was fertile for logically untenable and/or practically unhelpful constructions. Mention has already been made of Hans Kelsen’s attempt to base the legal system upon one basic norm, the Grundnorm, which was no more than a fiction. Triepel’s Gemeinschaftswille, which preceded Kelsen’s Grundnorm, was also a fiction, and both are an expression of the existential discomfort of positivists who are unable to give law a real (as distinct from a hypothetical) basis. But monism with the primacy of domestic law was intellectually an unsatisfactory construct because it tried to combine the absolute sovereignty of the state with the rule of international law. Yet these concepts are incompatible with each other, and even Jean Bodin, who worked out the modern concept of sovereignty,18 considered it an only relative one, subject to divine law and the law of nations. The idea of international law as a universally binding legal order, which in turn receives its binding force from the recognition by a single state that the primacy of whose law is taken as the starting point for considering the whole problem resembles the attempts made in the seventeenth century to save the geocentric system by assuming that all planets except Earth were revolving around the sun but that the latter—together with all other planets—was revolving around Earth. Both attempts run counter to the principle that among competing hypotheses, the simplest one is to be preferred. Verdross therefore argued that, in practice, only monism with the primacy of international law made sense.19 From this pragmatic acceptance of a single legal 18

In his Six livres de la République, Paris: Jacques de Puys, 1576. According to Bruno Simma, The Contribution of Alfred Verdross to the Theory of International Law, in: European Journal of International Law, 6, 1995, pp. 33-54. at pp. 44 et seqs.: ‘the monism represented by Verdross rests upon [. . .] a specific adoption of the universalistic conception of international law [. . .]. On this basis, it advocates the unity of international and domestic law, with international law enjoying primacy. The roots of this theory emerged almost simultaneously in The Netherlands, France and Austria.’ 19

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order comprising the different national laws under international law, there was only one step to regarding—as Vitoria and Suárez had done—international law not just a law between states based on their will—international in a defective sense—but a supranational law anchored in a universal legal conscience.20 This revival of the universalistic approach, initiated by the Dutch scholar Hugo Krabbe (1857–1936), inspired Verdross’ thinking beyond the immediate issue of monism. While Kelsen advocated a radical form of monism according to which a norm of domestic law that was incompatible with international law was null and void,21 Verdross favoured the latter approach, which has come to be known as moderate or structured monism,22 which permits an individual state organ to decide on which comprehensive knowledge of international law cannot always be expected to apply domestic law. Should another state thereby feel violated under international law, a possible conflict between the applied domestic law and international law will be resolved in favour of the latter. It was only consequent that Verdross, once having opted for monism with the primacy of international law, moved on towards a general foundation of international law beyond positivist understanding. Important steps in this development were two books, which followed each other within a period of only 3 years. The first appeared in 1923 and was entitled Die Einheit des rechtlichen Weltbildes auf der Grundlage der Völkerrechtsverfassung (The Unity of the Legal Cosmos Based on International Law as Its Constitution). In this book, Verdross uses legal theory to construe a consistent single legal system by setting the various domestic laws into a common framework constituted by international law. Consequently, no state may consider itself above international law; rather, all states are subject to the latter. In the second book, which appeared in 1926 with the title Die Verfassung der Völkerrechtsgemenschaft (The Constitution of the Community of International Law), Verdross demonstrates how the single-system approach alone would guarantee the functioning of the international community as it presented itself after World War I. Though Verdross remained interested in the legal theory’s requirement of a legal system without inherent contradictions, the accent of the book is a new one. In the meantime, Alfred Verdross had realised that a functioning international community was not so much a question of creating a theoretically consistent legal system, which is a concern of legal theory than of establishing and preserving a peaceful and just international order, which is a concern of political practice because it alone meets the natural demands of men as individuals and as social beings. Motivated by the contemporary axiology (Wertphilosophie) of Franz Brentano (1838–1917), Max Scheler (1874–1928) and Nicolai Hartmann (1882–1950),

20

Ibid., at p. 45. In this regard, he followed Léon Duguit (1859-1928), whose most renowned student, Georges Scelle (1878-1961), reached the conclusion that international law overrides any municipal law conflicting with it; Manuel elementaire de droit international public (Paris: DomatMonchristien,1943), p. 21: ‘Le droit international prime le droit étatique’. 22 Cf. Verdross, Völkerrecht, 5th ed. (Vienna: Springer, 1964), pp. 111 et seqs. 21

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Verdross transcended the limits of legal theory, turning to substantive legal philosophy. By contending that the idea of law was justice and that therefore both the domestic and the international legal order had to strive for justice,23 Verdross was able to bridge the gap between legal theory (requiring consistency) and substantive legal philosophy (calling for justice). Justice, in turn, can only be realised if it corresponds to the nature of man and society and is recognised as the fundament of law, state and international community. For more than a hundred years, the Historical School of Law and subsequent legal positivism had obscured this insight, but Verdross had only to take up the tradition of what Gottfried Wilhelm Leibniz (1646–1716) has called the philosophia perennis,24 the everlasting philosophy, a tradition that reaches from Plato (428/427–348/347 B.C.)25 and Aristotle (384–322 B.C.)26 through Cicero (106–43 B.C.)27 and Christian theologians like Augustine (354–430)28 and Thomas Aquinas (1225–1274)29 to the natural law doctrine of modern times. Represented originally by Francisco de Vitoria (1483–1546)30 in Salamanca, who first applied it to the relationship between Christian and non-Christian people alike, and by Francisco Suárez (1548–1617) in Coimbra, it was taken up in the seventeenth and eighteenth centuries by Hugo Grotius (1583–1645),31 Samuel Pufendorf (1632–1694)32 and Christian Wolff (1679–1754).33 The influence of the Spanish school on Hugo Grotius and other leading figures of the modern doctrine of state and law has been demonstrated in more detail by Ernst Reibstein in two books, namely The Beginnings of Modern Natural and International Law. Studies on the Controversiae Illustres of Ferdinand Vasquius (1559)34 and Johannes Althusius as Continuer of the School of Salamanca.35 It had only been in the course of the nineteenth century that natural law thinking had to give way, first to the Historical School of Law and thereafter to positivism.

23

Cf. Verdross, Völkerrecht, 5th ed. 1964, pp. 13 et seqs. (‘Die Rechtsidee’). Leibniz, Letter to Remond, 26 August 1714; cf. Verdross, Abendländische Rechtsphilosophie, 2nd ed. (Wien: Springer, 1963), p. 137. 25 Cf. ibid., pp. 69 et seqs. 26 Cf. ibid., pp. 126 et seqs. 27 Cf. Verdross, Abendländische Rechtsphilosophie, 2nd ed. 1963, pp. 48 et seqs. 28 Cf. ibid., pp. 62 et seqs. 29 Cf. ibid., pp. 71 et seqs. 30 Cf. ibid., pp. 92 et seqs. 31 Cf. ibid., pp. 112 et seqs. 32 Cf. ibid., pp. 128 et seqs. 33 Cf. ibid., pp. 138 et seqs. 34 Die Anfänge des neueren Natur- und Völkerrechts. Studien zu den Controversiae illustres des Ferdinand Vasquius (1559), (Bern: Verlag Paul Haupt, 1949). 35 Johannes Althusius als Fortsetzer der Schule von Salamanca. Untersuchungen zur Ideengeschichte des Rechtsstaates und zur altprotestantischen Naturrechtslehre, Freiburger rechtsund staatswissenschaftliche Abhandlungen, Vol. 5 (Karlsruhe: C. F. Müller 1955). 24

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This goes back to the individualistic legal philosophy that was introduced by writers of the fifteenth and sixteenth centuries and reached its philosophical climax with the so-called German idealism and, more particularly, with Georg Wilhelm Friedrich Hegel (1770–1831). It is rooted in the conviction that law may be established only by an authority above and superior to its subjects.36 For Hegel, the supreme authority was the state as the representative of God or the World Spirit in its objective form. Thus, the state’s law was to be regarded as the supreme law, and the existence of the international community, as well as the binding force of international law, was to be denied. ‘Hegel's individualistic conception of international law as each sovereign state's “external state law”, based upon its self-commitment and nothing more,’37 coincided with the rise of nationalism and the propagation of the nation as the true subject of international law.38 Hegel’s theory is amoral because it identifies justice with success—according to Hegel, the history of the world, which is the world's only court of judgment39—and thus has success justify the (i.e. any) means. Hegel’s conception of law was adopted by Georg Jellinek (1851–1911), who defended the view that the basis of obligation of international law was provided by such self-commitment (Selbstverpflichtung). Though being a positivist himself, Jellinek’s main opus, the General Theory of the State,40 was of great (and still is of some) influence on the German doctrine of state and law because, unlike Hans Kelsen (1881–1973), he tried to combine facticity and normativity in a more comprehensive view of legal phenomena.41 Because of the individualistic approach to international relations and the strong positivist influence upon law, the second part of the nineteenth and the first part of the twentieth century were, from the point of view of developing, in theory and in

36 Simma, The Contribution of Alfred Verdross to the Theory of International Law, in: European Journal of International Law, 6, 1995, pp. 33-54, at pp. 39 et seq. 37 Simma, The Contribution of Alfred Verdross to the Theory of International Law, in: European Journal of International Law, 6, 1995, pp. 33-54, at pp. 40. 38 A leading figure of this movement was Pasquale Stanislao Mancini (1817-1888) who laid down the principles of this concept in his Prelezione al corso di dritto internazionale e marittimo entitled Della nazionalità come fondamento del dritto delle genti (Turino: Eredi Botta, 1851). The wellunderstood core of ideas can be found today in the in the right of all peoples to self-determination, as contained in the United Nations Charter and other international instruments like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which are considered to collectively constitute an International Bill of Human Rights. 39 ‘The Mind of the world exercises its right in the history of the world which is the world's court of judgement.’ Hegel, Philosophy of Right [Law], (Original German ed. 1821 Berlin: Nicolaische Buchhandlung), § 341. 40 Jellinek, Allgemeine Staatslehre, 1st ed. (Berlin: O. Häring, 1900). 41 Cf. Jens Kersten, Georg Jellinek, in: Enzyklopädie der Rechtspilosophie, http://www. enzyklopaedie-rechtsphilosophie.net/Joomla/components/com_joomlawiki/index.php? title¼Jellinek,_Georg.

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practice, a peaceful international community built on justice, a period of regress rather than of progress that directly led to two world wars. Verdross, in his early years inclining to the neo-Kantian philosophy that was at the basis of Kelsen’s ‘pure’ legal theory, felt compelled to take ‘the decisive step towards natural law which informed his further theoretical and philosophical work’.42 Verdross joined and soon became the spokesman—at least in the German-speaking part of Europe—of those scholars who worked on the renaissance of natural law thinking in the international field43 that for decades had been almost exclusively under the sway of international legal positivism. Verdross revived the ideas of Thomas Aquinas, Francisco de Vitoria and Francisco Suárez on the common good44—peace and security, freedom, and welfare—and its resulting consequences for the international community.45 Of great influence on his thinking was the social doctrine of the Catholic Church46 because there he found that these ideas applied to modern problems.47

42

Bruno Simma, The Contribution of Alfred Verdross to the Theory of International Law, in: European Journal of International Law, 6, 1995, pp. 33-54., at p. 37. 43 Cf. Herbert Schambeck, Alfred Verdross als Rechtsphilosoph und die Wiener Rechtstheoretische Schule, in: Peter Fischer/Margit Maria Karollus/Sigmar Stadlmeier (eds.), Die Welt im Spannungsfeld zwischen Regionalisierung und Globalisierung. Festschrift für Heribert Franz Koeck, (Wien: Linde 2009), 527-543, at 540 et seq. 44 Cf. Verdross, Abendländische Rechtsphilosophie, 2nd ed. (Vienna: Springer, 1963), pp. 78 et seqs. 45 The influence of Francisco de Vitoria on Alfred Verdross and his ‘school’ is dealt with in detail in: Heribert Franz Koeck, The Impact of Francisco de Vitoria’s International Legal Doctrine Upon the ‘Vienna School of International Law and Legal Philosophy’ of the Twentieth Century, in: José María Beneyto/Carmen Román Vaca (eds.), New Perspectives on Francisco de Vitoria. Does International Law lie at the heart of the origin of the modern world? (Madrid: CEU Ediciones, 2014), Cap. 4, pp. 53-131. This study is followed here where appropriate. 46 ‘To dwell on the topic of the ideas and forces which had an influence on Verdross’s thinking, [. . .] Catholicism [. . .] provided a fitting, if not essential, foundation for his natural law philosophy as well as for his universalistic view of international law.’ Simma, The Contribution of Alfred Verdross to the Theory of International Law, in: European Journal of International Law, 6, 1995, pp. 33-54, at p. 37. However, Verdross remained reserved vis-à-vis what has been described by Carty ‘[t]he reactionary quality of political Christianity [. . .] central to the Austrian regime of 1934-38, similar to the authoritarian regimes in Portugal and Spain. The Vatican, the Episcopate and Clergy of Austria stood relatively firmly behind the regime. It wished to put the socio-economic clock back to an ideal medieval Stande society where each knew his place. The social basis of this political Catholicism was among farmers, small business people and particularly, the dominant civil service.’ Anthony Carty, Alfred Verdross and Othmar Spann: German Romantic Nationalism, National Socialism and International Law, in: European Journal of International Law, 6, 1995, pp. 78-97, at pp. 93 et seq. It is therefore completely unfounded that Carty call this ‘very much Verdross’ world’. Ibid., p. 94. 47 Cf., e.g., Verdross, Grundlagen und Grundsätze des Völkerrechts in christlicher Schau, in: Schönere Zukunft, Vol. XIII, No. 16, 1938, pp. 385-387; id., Die Entstehung der christlichen Völkerrechtslehre und ihre Entfaltung durch die Päpste sowie durch das Zweite Vatikanische Konzil, ‘Ruf und Antwort’, Schriftenreihe des Cartellverbandes der katholischen österreichischen Studentenverbindungen, des Cartellverbandes der Katholischen deutschen Studentenverbindungen und des Schweizerischen Studentenvereins, Heft 8, Vienna 1969; and id., Erneuerung und

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When Nazi Germany occupied Austria in 1938, Verdross—whose concept of mankind as a natural legal unity was in open contradiction to the naturalistic concept of national socialism of superiority and inferiority of races and of the Germans as the purest part of an Aryan master race entitled to world domination—was immediately suspended. He was only partly reinstated in 1939, being forbidden to give lectures in legal philosophy.48 After the re-establishment of Austria in 1945, Verdross became one of the most prominent academic figures, not only in Austria but also in Europe as a whole. He was several times the dean of the Law Faculty and from 1951 to 1952 the rector of the University of Vienna. Verdross, who was a member of the Institut de Droit International, was an elected member of the International Law Commission (1957–1966) and a judge at the European Court of Human Rights (1958–1977).49 He was the president of the United Nations Conference on Diplomatic Intercourse and Immunities in 1961, which adopted the Vienna Convention on Diplomatic Relations.50 In Austria, his teachings

Entfaltung der klassischen Völkerrechtslehre durch Pius XII., in: Herbert Schambeck (ed.), Pius XII. zum Gedächtnis (Berlin: Duncker & Humblot, 1977), pp. 613-626. 48 It is therefore difficult to understand how some authors then and afterwards could allege an affinity of Verdross’ writings to the National Socialist concept of international law. Cf., in this regard, Anthony Carty, Alfred Verdross and Othmar Spann: German Romantic Nationalism, National Socialism and International Law, in: European Journal of International Law, 6, 1995, pp. 78-97, who relies on Ernst Engelberg, Les bases idéologiques de la nouvelle conception de droit international de M. Alfred von Verdross, RGDIP 46, 1939, pp. 37-52, and also refers to Eduard Bristler, Die Völkerrechtslehre des Nationalsozialismus, (Zurich: Europa Verlag, 1938). Indeed, Carty had to concede, at p. 94 of the same article, that VERDROSS tried ‘from the very outset to reactivate the cultural power of a 16th century Spanish catholic intellectual tradition which he sees threatened by modernist, Enlightenment individualism. He states explicitly the need to bridge the cultural void [. . .] from the 16th century to the [twentieth century]. The whole structure of the Verfassung is built around this theme from pages 12 to 42. A criticism of 19th century positivism is followed by a return to a review of classical international law with Suarez and Grotius. The key argument after page 28 is about the renaissance of classical international law, after its having been shaken by positivism.’, And, again, at p. 95: ‘How remote the world of [. . .] Verdross was from the ethos of the survival of the fittest (social Darwinism) of National Socialism is stressed by numerous authors [. . .]’ Rather, Verdross had the ‘desire to replace a social Darwinist struggle for life with a supposedly natural, harmonious society.’ 49 ‘Through his long-standing membership of the International Law Commission, Verdross found himself in a position where he could contribute many of his ideas to the international codification process even more directly than through the influence of his scholarly writing. As a judge of the European Court of Human Rights in Strasbourg, he participated in the formative phase of the most advanced system for the protection of human rights worldwide. Within the German-speaking countries, Alfred Verdross shaped international legal thinking in a way unparalleled in the past and, almost certainly, also in the future. As such his work forms an influential part of the history of European legal and social thought of this [the twentieth] century.’ Simma, The Contribution of Alfred Verdross to the Theory of International Law, in: European Journal of International Law, 6, 1995, pp. 33-54, at p. 54. 50 United Nations, Treaty Series, vol. 500, p. 95.

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were dominant, and he is regarded as the founder and head of the Viennese School of International Law and Legal Philosophy based on natural law thinking.51 As an emeritus, Verdross continued to be proliferate in his writing based on a sound philosophical basis52 and on a stupendous knowledge of state practice.53 Then as before, his interests were not so much the niceties of the positive legal order as the general principles of law to which that order has to live up if it was to create and protect the conditions necessary for a decent human life. One of the most important ideas then presented by him was the expansion of the notion of the bonum commune, the common good of men living in a particular body politic, traditionally regarded the raison d’être of the state and its law, to the notion of bonum commune humanitatis, the common good of mankind, to be regarded as the raison d’être of the international community and its law, the law of nations.54 Verdross’ view of international law, both as regards the natural principles at its basis and the positive rules complementing them, was laid down in systematic form in his International Law (Völkerrecht). The first edition appeared before55 and the others after World War II.56 He also dealt with the origins of substantive legal philosophy in his book Basic Lines of Ancient Philosophy of Law and State (Grundlinien der antiken Rechts- und Staatsphilosophie)57 and presented the whole spectrum of more than 200 years of legal philosophy in his opus Occidental Legal Philosophy (Abendländische Rechtsphilsophie).58 In his book Static and Dynamic Natural Law (Statisches und dynamisches Naturrecht),59 he demonstrated the capability of natural law thinking to cope with the problems presented by the development of man and society, of state and international community. The universalistic approach of Alfred Verdross is also demonstrated in his last great opus, Universal International Law,60 which was published in 1976 and of 51 The other Austrian scholar who contributed to the renaissance of natural law thinking, not so much in the area of international law, but in the area of domestic law, was not primarily a jurist but a theologian, namely Johannes Messner. Cf. his opus magnum Das Naturrecht. Handbuch der Gesellschaftsethik, Staatsethik und Wirtschaftsethik, 7th ed. (Berlin: Duncker & Humblot 1984). 52 In addition to his Abendländische Rechtsphilosophie (Occidental Legal Philosophy) which has repeatedly been quoted, cf. Verdross, Statisches und dynamisches Naturrecht, (Freiburg: Rombach, 1971), showing that natural law is not static but dynamic and therefore suited to correspond to the need of a developing society. 53 Apart from his main opus, Völkerrecht (International Law), the first edition of which was published before World War II, and four further editions after the war, cf. Verdross, Die Quellen des universellen Völkerrechts, 1973 (a system of the sources of international law). 54 Cf. Verdross, Der klassische Begriff des bonum commune und seine Entfaltung zum bonum commune humanitatis, 28 Österreichische Zeitschrift für öffentliches Recht (1977), pp. 143-162. 55 Berlin 1937. 56 The last one was the 5th edition (Vienna: Springer, 1964). 57 Vienna: Springer, 1946; 2nd edition 1948. 58 Vienna: Springer, 1958; 2nd edition 1963. 59 Freiburg: Rombach, 1971. 60 Universelles Völkerrecht: Theorie und Praxis (in collaboration with Bruno Simma), 1st ed., 1976; 3rd (revised) ed. 1984 by Bruno Simma (Berlin: Duncker & Humblot).

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which Bruno Simma is the co-author, who, after Verdross’ demise, took care of the second and (revised) third editions. So compelling was Verdross’ system, free from inherent contradictions and rounded off by arguments from theory and practice alike, that ‘distance vis-à-vis Verdross’ ideas was not easily to be accomplished in the world of Austrian international legal thinking in which [. . .] everybody was exposed to and, to a greater or lesser degree, influenced by the teachings of the Viennese master’.61 I now turn to the first generation of Verdross’ disciples. The first to mention here is Stephan Verosta (1909–1998), who was Verdross’ assistant in the 1930s. Since at the time this was an unpaid function, Verosta worked simultaneously at the International Law Department of the Austrian Foreign Office and as a law clerk at the Austrian consular court in Kairo, then situated in Vienna. After the Anschluss of Austria by Nazi Germany in 1938,62 Verosta was suspended and—considered ‘politically unreliable’—not taken over into the German Foreign Office. Until 1945, he served as a judge. After World War II and the re-establishment of Austria as a separate state, Verosta returned to the Austrian Foreign Office, contributed much to the reconstruction of Austria’s diplomatic service and—after an interlude as the head of Austria’s mission to Hungary 1951–1953—became the director of the Völkerrechtsbüro (International Law Department) and was a close adviser to Foreign Minister Leopold Figl in the latter’s endeavours to reach a settlement with the powers that still occupied Austria since World War II (France, the Soviet Union, the United Kingdom and the United States) that would make them leave. During the crucial negotiations between an Austrian governmental delegation and the Soviet government in Moscow in February of 1955, he spontaneously developed the idea that adopting, for Austria, a permanently neutral status like the one enjoyed by Switzerland since 1815 could allay Soviet fears that after the withdrawal of the Red Army Austria would join the NATO. On this basis, laid down in the Moscow Memorandum, the way was free for the conclusion of the Austrian State Treaty of 1955 and Austria’s final independence.63 From 1956 to 1961, Verosta headed the Austrian mission in Warsaw, first with the rank of minister (envoy) and afterwards of ambassador. Habilitated (granted the venia legendi) at the University of Vienna in 1946 with a book on the international status of Austria, Verosta succeeded Alfred Verdross on the chair of International Law and Legal Philosophy, which he held from 1962 to

61 Simma, The Contribution of Alfred Verdross to the Theory of International Law, in: European Journal of International Law, 6, 1995, pp. 33-54., at p. 34. 62 The annexation of Austria by Nazi Germany in 1938, later interpreted as a mere occupation in order to be able to maintain the claim to legal continuity between the First Republic (1918-1938) and the Second Republic (from 1945 onwards). 63 Between 1945 and 1955, the supreme authority was exercised by the Allied Council composed of the representatives of the four occupying powers; its right to veto was, however, restricted to constitutional laws, and its exercise required a majority in the Council.

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1980, the year of his retirement. He maintained his association with the Austrian Foreign Office in the capacity of legal adviser.64 Verosta, who was the author of that part of the fifth edition of Verdross’ International Law,65 which dealt with the history of international law,66 and who had written a book on Iohannes Chrysostomos (344–407),67 one of the Greek Fathers of the Church,68 shared with Verdross the Catholic background. While Verdross looked at state practice from the perspective of legal principles, Verosta was more ready to take into account political considerations and related state practice. This caused him to edit an Austrian digest of international law based on the state practice of Austria(-Hungary) between 1859 and 1918.69 His writings on the origins and the legal nature of Austria’s permanent neutrality70 are characterised by the same tendency. Verosta’s main opus, Theory and Reality of Alliances,71 depicts the national and international development in Central Europe during the second half of the nineteenth and the early twentieth centuries, including World War I from an Austrian perspective, and shows that the author was critical of the domestic and foreign policy of the Hapsburg monarchy. Verosta was a member of the Institut de Droit International. He served in the International Law Commission from 1977 to 1981 and in 1963 was elected president of the United Nations Conference on Consular Relations, which adopted the Vienna Convention on Consular Relations.72 Ignaz Seidl-Hohenveldern (1918–2001) became the assistant of Alfred Verdross immediately after World War II. He also joined the Austrian Foreign Office and soon rose to the position of deputy head of the International Law Department. Habilitated in 1951 at the University of Vienna, he left Austria in 1954 in order to teach law at the University of the Saarland, where he was associate professor until 1958 and full

64 Felix Czeike (ed.), Historisches Lexikon Wien. Band 6: Ergänzungsband, (Vienna: Kremayr & Scheriau, 1992-1997, 2004), 235. 65 Völkerrecht, 5th ed. Vienna 1964. 66 Pp. 31-94. 67 Stephan Verosta, Iohannes Chrysostomos – Staatsphilosoph und Geschichtstheologe (Johannes Chrysostomos, Philosopher of State and Theologian of History), Graz-Vienna-Cologne: Styria, 1960. 68 Early and often influential theologians of the Church who were attributed this epitheton. 69 Die völkerrechtliche Praxis der Donaumonarchie von 1859 bis 1918: Eine Auswahl von Dokumenten, 2 vols., Vienna: Austrian Academy of Science, 1996 (with Ignaz SeidlHohenveldern). 70 Cf., in particular, Die dauernde Neutralität. Ein Grundriss, (Vienna: Manzsche Verlags- und Universitätsbuchhandlung, 1967). 71 Stephan Verosta, Theorie und Realität von Bündnissen: Heinrich Lammasch, Karl Renner und der Zweibund (1897-1914), Vienna: Europa-Verlag1971, which – notwithstanding the limitation to the period of 1897to1914 made in the title – examines the Austro(-Hungarian) domestic and foreign policy since the middle of the nineteenth century. 72 United Nations, Treaty Series, vo1. 596, 261.

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professor until 1968. In that year, he accepted a chair of international and public law at the University of Cologne. There he retired in 1981 and returned to Austria in order to take up a professorship at the University of Vienna, where he taught international and European law until 1988. However, he discontinued the tradition, initiated by Verdross and maintained in the time of Verosta, of combining the chair of international law with that of legal philosophy. Rather, he was a specialist in international economic law and less concerned with philosophical questions. Seidl-Hohenveldern wrote two textbooks, one on international law73 and the other on international organisations,74 both of which saw many editions. He was a member of the Institut de Droit International and in 1983 was elected president of the United Nations Conference on the Succession of States in Respect of State Property, Archives and Debts in 1983.75 Karl Zemanek (born 1929) was the third close collaborator of Alfred Verdross. After two academic years abroad (1954–1956) at the University of the Saarland, he was granted the venia legendi at the University of Vienna. The election of Alfred Verdross to the International Law Commission, resulting in his periodic absence from Vienna for several months, made an additional professorship desirable, and Zemanek was made associate professor in 1958. In 1964, he was appointed to a newly created chair of international law and international organisations, which he held until his retirement in 1998. Zemanek also worked with the Austrian Foreign Officer, first on an ad hoc basis and from 1967 as one of its permanent legal advisers. His constant involvement with the legal aspects of Austria’s bilateral and multilateral foreign relations, where he had to deal with the most recent developments of international law, provided him with a comprehensive knowledge of the practice of states and international organisations. His writings are mainly devoted to the solution of difficult questions of positive international law on the universal, regional and national levels.76 Zemanek contributed to the fourth and fifth editions of Verdross’ Völkerrecht a Part on international administration by supranational and international organisations.77 Karl Zemanek is a member of the Institut de Droit International. He was elected president of two United Nations Conferences for the sectorial codification of international law, namely the Conference on the Succession of States in Respect to

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Völkerrecht, 8th ed., Cologne-Berlin-Bonn-Munich 1994. Das Recht der Internationalen Organisationen einschließlich der supranationalen Gemeinschaften, 5th ed. Cologne-Berlin-Bonn-Munich 1992 (with Gerhard Loibl). 75 It adopted the Vienna Convention on Succession of States in respect of State Property, Archives and Debts of 1983, Official Records of the United Nations Conference on Succession of States in Respect of State Property, Archives and Debts, vol. II (United Nations publication, Sales No. E.94. V.6). 76 For a list of Zemanek’s publications see Lilly Sucharipa-Behrmann in: Gerhard Hafner, Winfried Lang, Hanspeter Neuhold & Lilly Sucharipa-Behrmann (eds.), Völkerrecht zwischen normativem Anspruch und politischer Realität, Festschrift für Karl Zemanek, Berlin: Duncker & Humblot 1994, p. 523. 77 See, in the 5th ed., pp. 594 et seqs. 74

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Treaties (1977/78)78 and the Conference on the Law of Treaties Between States and International Organizations or Between International Organizations (1986).79 Herbert Miehsler (1934–1986) studied law at the University of Vienna. He first served in the administration of Lower Austria, one of the nine component states of Austria. He was habilitated (granted the venia legendi as a Dozens) at the University of Vienna by Verdross in 1962 with a study on South Tyrol as a Problem of International Law.80 In 1965, he was appointed associate professor and 1967 full professor at the Karl-Franzens University Graz. In 1969, he was appointed full professor at the Paris Lodron University Salzburg and director of the new Institute of International Law and Comparative Public Law. He was the founder of the Austrian Institute for Human Rights in Salzburg. After his death, he was honoured by the University of Salzburg with annual commemorative lectures from 1987 to 1996. The second generation of Verdross’ disciples is constituted by those international lawyers who were in constant contact with him at a time when he was already emeritus. While the most prominent of them, Bruno Simma, will be dealt with infra, for (so-to-say) genealogical reasons, I start with two assistants to Stephan Verosta as from 1963 and 1965, respectively, namely Peter Fischer (born 1939) and the author of the present paper (born 1941). Though both were mainly devoted to international law and were also among the first in Austria who gave lectures on European integration in general and the institutions of the European Communities in particular, they also worked in the field of legal philosophy much on the line of Alfred Verdross. Peter Fischer took up the idea, earlier discussed by Verdross, of a “quasiinternational treaties” (quasi-völkerrechtliche Verträge)81 and in 1973 was granted the venia legendi at the University of Vienna with a study about International Concessions.82 There he demonstrated that the treatment of international law as a ius inter gentes (in contrast to domestic law as a ius inter homines) had been introduced by Francisco de Vitoria in the sixteenth century for didactic reasons did not mean that states could deal with private persons arbitrarily; rather, they were

78 It adopted the Vienna Convention on the Succession of States in Respect to Treaties, United Nations, Treaty Series, vol. 1946, p. 3. 79 It adopted the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, vol. II (United Nations publication, Sales No. E.94.V.5). 80 Südtirol als Völkerrechtsproblem, (Graz-Vienna: Styria, 1962). 81 See Alfred Verdross, Die Sicherung von ausländischen Privatrechten aus Abkommen zur wirtschaftlichen Entwicklung mit Schiedsklauseln, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 18, Issue 4, 1957/58, pp. 635-651; id., Quasi-International Agreements and International Economic Transactions, in: Yearbook of World Affairs, Vol. 18, 1964, pp. 230-247; and id., Gibt es Verträge, die weder dem innerstaatlichen noch dem Völkerrecht unterliegen?, in: Zeitschrift für Rechtsvergleichung, 1966, pp. 129-134. 82 Peter Fischer, Die internationale Konzession, Vienna: Springer 1973.

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bound to honour obligations undertaken towards them under the general principles of law recognised by civilised nations.83 Fischer paved the way for the acceptance, both in international practice84 (including that of arbitral tribunals85) and legal doctrine,86 of the concept of ‘partial’ or ‘restricted’ international legal personality of individuals. Fischer was appointed associate professor at the Vienna Law Faculty in 1976 and in 1989 attained the status of a full professor. He retired in 2004 but continues to teach at universities and other institutions in Austria and abroad. The author of this paper was habilitated in the course of 1974/1975 with a book on The International Legal Position of the Holy See.87 There he demonstrated that the Catholic Church rightly claimed independence from any state because states are competent for the temporal welfare of their citizens while the church is competent for their spiritual welfare. Traditionally, this independence (spiritual sovereignty) was directly attributed to the institution “church” as such. Today, it has to be construed in an indirect way through the right of religious freedom of the individual: the church (as any religious community) partakes in the individuals’ collective freedom, i.e. the freedom to exercise religion in community with others. Most of the other rights enjoyed by the church are also dependent on an individual right of her members, namely the right to have their religious interests promoted by the state the same way as any other interests existing in society. In contrast to this general independence (sovereignty) of the church, the fact that its supreme organ, the Roman bishop (Pope), is considered a subject of international law and represents it vis-à-vis states and international organisations in the forms of traditional diplomatic intercourse practiced within the international community has been merely but firmly established in international customary law and codified in the Vienna Convention on Diplomatic Relations of 1961.88 At the University of Vienna, the author of the present study was given the title of associate professor in 1979. In 1981, he was appointed to the chair of international law at the Johannes Kepler University of Linz, where he also taught European law and legal philosophy. For altogether 20 years, he was the dean of the Law Faculty. 83

And which formed what Gaius had called the ius gentium. See the extensive case law (at present 169 pending and 251 concluded cases) as developed by the numerous arbitral tribunals under the system of the International Center for Settlement of Investment Disputes (ICSID), where private foreign investors and host States are litigating on an equal, namely international footing. As to more details see https://icsid.worldbank.org/ICSID/ FrontServlet?requestType¼CasesRH&actionVal¼ListCases. 85 See the Libyan arbitration cases in the late seventies of the last century by Peter Fischer, LIAMCO-Libya, Petroleum Concessions Arbitration (1977), in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. III, Amsterdam et al.: North Holland, 1997, p. 208-211. See also the case Texaco/Calasiatic v Libyan Arab Republic, in: International Legal Materials XVII (1978), p. 1321. 86 See Karl Josef Partsch, Individuals in international law, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. II, Amsterdam et al.: North Holland, pp. 957-962. 87 Heribert Franz Koeck, Die völkerrechtliche Stellung des Heiligen Stuhls. Dargestellt an seinen Beziehungen zu Staaten und internationalen Organisationen, Berlin: Duncker & Humblot 1975. 88 United Nations Treaty Series, Vol. 500, p. 95. Cf. article 14 (a) and (b) and article 16, No. 3. 84

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He retired in 2009 but continued to serve as the University’s representative for Eastern and South-eastern Europe. As of 1971 and 1979, respectively, the author of this paper and Peter Fischer had been adviser to the Permanent Mission of the Holy See to the international organisations in Vienna (third headquarters of UNO and headquarters of IAEA and UNIDO) and from 1981 onwards members of that Mission. They represented the Holy See in many international conferences and meetings of organs of international organisations. Apart from the fact that the author of the present paper had the underserved privilege to become, on Verdross’ invitation, the co-author of a summary of ideas that had occupied the latter during the by far greater part of his academic life and that have been, and still are, fascinating to the former. The contribution entitled Natural Law: The Tradition of Universal Reason and Authority was unfinished when Verdross died in the spring of 1980; it was completed and sent by the author of this paper to the editors of a collection of papers for which it had been solicited.89 If the author of the present paper may claim a special contribution to legal philosophy, then it is his insistence on the need to take pluralism of society seriously and to acknowledge that the different religious, philosophical, political, cultural, social and economic positions have to be respected. Consequently, no theoretical approach to law, state and the international community can be imposed on others. This applies also to natural law thinking. Rather, the binding force of positive law can only—and for practical purposes has to—be construed on the basis of a general recognition of those legal principles that are necessary for that kind of living together of men and states that everyone can be expected to share in because it grants them peace and security, freedom and welfare.90 Law in the pluralistic society of men and nations does not rest on the insight into the truth of any philosophical approach to law but only on the acceptance of those principles that every man and state has to recognise, unless he prefers Hobbes’ bellum omnium contra omnes. But in this case, he cannot complain if those who want to live in peace, freedom and welfare regard him an enemy of mankind (hostis humani generis) and take to such measures of selfdefence as are necessary against anyone who chooses to live as a wolf among wolfs (homo homini lupus). This applies to the relationship between men as well as between states. A disciple of Karl Zemanek was Konrad Ginther (1934–2012), who studied law in Vienna and Cambridge, made his habilitation (Dozentur) in Vienna in 1969 and— after a short interlude as associate professor there—was appointed full professor at the Karl Franzens University Graz in the same year. He dealt with the significance of Africa for the development of international law and the overcoming of Apartheid in

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It appeared in: Ronald St. J. Macdonald & Douglas Millar Johnston (eds.), The Structure and Process of International Law: Modern Essays in Legal Philosophy, Doctrine and Theory, The Hague: Martinus Nijhoff Publishers, 1983, pp. 17-50. 90 Heribert Franz Koeck, Recht in der pluralistischen Gesellschaft, Vienna: Manz, 1998.

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South Africa as well as with the right to development and with environmental law.91 Disciples of Konrad Ginther are Wolfgang Benedek (born 1951) and Hubert Isaak (born 1955), both professors at the Karl Franzens University Graz for international law and European law, respectively. Disciples of Herbert Miehsler were Christoph Schreuer (born 1944), who studied in Vienna, Cambridge and Yale, was assistant professor in Graz in 1967–1968, associate professor at the Paris Lodron University Salzburg in 1970–2000, in 1992–2000 also Edward B. Burling Professor of International Law and Organization and director of International Law and Institutions at the School of Advanced International Studies, the Johns Hopkins University, and was Professor of Law at the University of Vienna 2000–2009; then Henn-Jüri Uibopuu (1929–2012), an Austrian-Estonian scholar (born in Tartu), who was Associate Professor of International and Soviet Law at the Paris Lodron University Salzburg in 1977–1995 and afterwards honorary professor for the law of socialist and former socialist states, legal adviser for the President and the Foreign Ministry of Estonia since 1989 and honorary consular general of Estonia in Salzburg since 1992;92 and, finally, Wolfram Karl (born 1941), who studied law in Vienna and Cambridge, was habilitated (given the venia docendi) at the Paris Lodron University Salzburg 1981 and was there Full Professor of Law from 1989–2009, afterwards emeritus professor. Starting in 1973, he also worked for the Austrian Foreign Office, for the United Nations, for the Conference for Security and Cooperation in Europe and for the Council of Europe. Karl became managing director of the Austrian Institute for Human Rights in Salzburg under Franz Matscher (born 1928, Professor of Civil Procedure in Salzburg and Austrian judge at the European Court of Human Rights)93 in 1989, soon co-director of that Institute and then its director from 2004 to 2013. In 2008, he was appointed Austrian member of the Permanent Court of Arbitration.94 Disciples of Peter Fischer are Gerhard Loibl (born 1957), presently associate professor at the University of Vienna and professor at the Vienna Diplomatic Academy, and Alina Maria Lengauer (born 1972), presently Associate Professor of European Law at the University of Vienna, who also served as vice-dean of the Law Faculty.

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See Wolfgang Benedek/Hubert Isak/Renate Kicker, Foreword to id., Development and developing international Law and European law. Essays in honour of Konrad Ginther on the occasion of his 65th birthday, Frankfurt/Main etc.: Peter Lang Verlag, 1999, pp. xi-xiv. 92 See Michael Geistlinger/Sarah Fussek (eds.), Umweltrecht in Mittel- und Osteuropa im internationalen und europäischen Kontext: Festgabe für Henn-Jüri Uibopuu zum 75. Geburtstag, Berlin: Wissenschaftsverlag, 2004. 93 See Mathias Vogl, Franz Matscher zum 80. Geburtstag – Dank und Würdigung, in: Armin Bammer/Gerhart Holzinger/Matthias Vogl/Gregor Wenda (eds.), Rechtsschutz gestern – heute – morgen. Festgabe zum 80. Geburtstag von Rudolf Machacek und Franz Matscher, Vienna: Neuer Wissenschaftlicher Verlag, pp. 31-35. 94 See Gerhard Hafner/Franz Matscher/Kirsten Schmalenbach (eds.), Völkerrecht und die Dynamik der Menschenrechte. Liber Amicorum Wolfram Karl, Vienna: Facultas, 2012, pp. 553-554.

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The author habilitated Sigmar Stadlmeier (born 1964), presently associated professor and director of the Institute of International Law, Air Law and International Relations at the Johannes Kepler University Linz and member of the Air Law Forum;95 Margit Maria Karollus (born Hintersteininger, 1973–2012), 2003 Associate Professor of International and European Law, 2008 secretary general of FIDE XXIII Congress Linz 2008 and 2009 director of the Institute of European Law at the Johannes Kepler University Linz;96 and Franz Leidenmühler (born 1973), presently Associate Professor of European and International Law and director of the Institute of European Law at the Johannes Kepler University Linz. Leidenmühler consciously endeavours to combine the tradition of the Vienna schools of legal theory (Hans Kelsen) and of international law and legal philosophy (Alfred Verdross),97 thereby going beyond the practical positivism characteristic for many of the younger generation of legal scholars. Though Alfred Verdross with his ‘school’ has made Vienna the Austrian centre of international law and legal philosophy in the decades following World War II, this must not obscure the fact that there have been international scholars in Austria well before Verdross, and others who cannot be counted among his disciples. A well-founded overview of those scholars who have contributed to the teaching and practice of international law in Austria has been given by Waldemar Hummer in the concluding chapter of a collection of lectures held, on his initiative, by international lawyers from all Austrian universities at the Leopold-Franzens-Universität Innsbruck in 2000 and 2001, edited by him in 2002 under the title Paragdigmenwechsel im Völkererecht zur Jahrtausendwende (Paradigmatic Changes in International Law at the Turn of the Millennium). There, he called it ‘remarkable’ that until then ‘no comprehensive survey of the doctrine of international law in Austria’ had been undertaken98 and that only the influence of the Vienna School of Legal Theory (i.e. the Kelsen tradition) on international law had been dealt with by a few articles which dated back, with one exception, to the interwar period. In the meantime, interest has shifted from the formal to the substantive aspect of international law, and Verdross and the Vienna School of International Law and Legal Philosophy, of which he was the inceptor, have increasingly

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Sigmar Stadlmeier, Völkerrecht, 2 vols, 8th ed. (Vienna: LexisNexis, 2017). Margit Maria Hintersteininger Der Kosovo-Konflikt und die Renaissance der bellum iustumDoktrin, in: 99 Wiener Blätter zur Friedensforschung 2/1999, 24-30. 97 Vgl. Franz Leidenmühler, Kollabierter Staat und Völkerrechtsordnung. Zur Aktualität der Westfälischen Ordnung, entwickelt an Fragen des Wegfalls effektiver Staatsgewalt. Neue Juristische Monographien, Bd. 62 (Vienna: Neuer Wissenschaftlicher Verlag, 2011). 98 At p. 357. 96

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been in the limelight, with quite a few publications dealing with his life and work99 and some also with his school.100 Given the fact that presently there are five faculties of law in Austria where research in, and teaching of, international law is done101 and that it is also possible to study law at the Vienna Business University, which has no faculty structure, and at the (private) Sigmund Freud University in Vienna, it is obvious that there have been, and still are, many international lawyers in Austria who have no direct relationship to the Verdross School, notwithstanding the fact that some disciples of Verdross, or disciples of his disciples, have held teaching positions at other Austrian universities as well as in Germany, in other Member States of the European Union and overseas, particularly in the USA. They all would deserve to be mentioned here, and most of them have indeed been mentioned by Waldemar Hummer. If there is an excuse for not doing so, it is the specification of my topic by the subtitle which runs ‘The influence of Austrian international lawyers on the formation of the present international legal order’. There are many meritorious academics who have ploughed the field of international law by their writing, teaching and (not the least in academic practice) conducting examinations and who will have impressed their students by their academic zeal and their concern for a peaceful and just word order. But only a very few will claim that they have influenced the formation of the

99 For more recent publications on the life and work of Alfred Verdross, cf. Ludwig Adamovic, Alfred Verdross – ein Lebensbild, in: Herbert Miehsler/Erhard Mock/Bruno Simma/Ilmar Tammelo (eds.), Ius humaitatis, Festschrift für Alfred Verdross, Berlin: Duncker & Humblot, 1980, pp. 3-7; Heribert Franz Koeck, Leben und Werk des österreichischen Rechtsgelehrten Alfred Verdross, in: 42 Zeitschrift für öffentliches Recht 1991, pp. 31-57; id., Alfred Verdross – Ein österreichischer Rechtsgelehrter von internationaler Bedeutung. Schriftenreihe der Niederösterreichischen Juristischen Gesellschaft, Vol. 56, 1991; id, Vita ed opera del giurista austriaco Alfred Verdross, in: Otto Kresten/Adam Wandruszka (eds.), 34/35 Römische Historische Mitteilungen 1992/93, pp. 299-326.; Bruno Simma, The Contribution of Alfred Verdross to the Theory of International Law, in: European Journal of International Law, 6, 1995, pp. 33-54; Ignaz Seidl-Hohenveldern, Alfred Verdross (1890-1980). Biographical Note with Bibliography, in: European Journal of International Law 6, 1995, pp. 103-115. See also, especially in connection with the topic dealt with in this paper, Schambeck, Alfred Verdross als Rechtsphilosoph und die Wiener Rechtstheoretische Schule, in: Peter Fischer/Margit Maria Karollus/Sigmar Stadlmeier (eds.), Die Welt im Spannungsfeld zwischen Regionalisierung und Globalisierung. Festschrift für Heribert Franz Koeck, Vienna: Linde Verlag, 2009, 527-543; Heribert Franz Koeck, Alfred Verdross – A Visionary of Contemporary Doctrine and Practice of International Law, in: Studia Iuridica Torunensia, 8/2011, pp. 7-33; Heribert Franz Koeck, Alfred Verdross – Sein wissenschaftliches Werk. Eine Einführung aus Anlass der Sammlung seiner Schriften, in: Heribert Franz Koeck/ Herbert Schambeck (eds.), Alfred Verdross – Gesammelte Schriften, 4 vols, Vol. I, xxxi-cxviii. 100 Heribert Franz Koeck, The Impact of Francisco de Vitoria’s International Legal Doctrine Upon the ‘Vienna School of International Law and Legal Philosophy’ of the Twentieth Century, in: José María Beneyto/Carmen Román Vaca (eds.), New Perspectives on Francisco de Vitoria. Does International Law lie at the heart of the origin of the modern world? Madrid: CEU Ediciones, 2014, pp. 53-131. 101 Namely at the University of Vienna, the Karl-Franzens University of Graz, the LeopoldFranzens University of Innsbruck, the Paris Lodron University of Salzburg and the Johannes Kepler University of Linz.

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present international order. In this regard, Waldemar Hummer had in mind only Kelsen and Verdross; I would like to add one additional name, namely that of Bruno Simma. Simma was born in Germany in 1941 but was brought up in Austria and studied law at the University of Innsbruck. During his studies, he was, for a short time, junior assistant to Herbert Schambeck (born 1934) and after their completion became assistant to Heinrich Kipp (1910–1993). He was habilitated (granted the venia legendi as a Dozent) in 1971 with a study on the principle of reciprocity in international treaty law.102 In 1973, he was appointed to the chair of international law at the Ludwig Maximilian University of Munich, which he held until his retirement in 2006. He was also involved in the training of German diplomats. Simma has been, for many years, a part-time faculty member to the University of Michigan Law School. He was Director of Studies of The Hague Academy of International Law in 1976 and 1982. In the framework of the United Nations, Simma served as a member of the United Nations Committee on Economic, Social and Cultural Rights from 1987 to 1996. He was a member of the International Law Commission from 1996 to 2003 and thereafter judge of the International Court of Justice from 2003 to 2012. Since then, he has been member of the Arbitral Tribunal for the settlement of the border dispute between Croatia and Slovenia, member (and chairman of the First Chamber) of the Iran-United States Claims Tribunal and chairman of an Arbitral Tribunal within the system of the International Tribunal for the Law of the Sea in a dispute between Argentina and Ghana. He is also judge ad hoc of the International Court of Justice for Costa Rica in the case Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), proceedings that were instituted by Costa Rica in 2014. Simma met Verdross for the first time in 1967, and notwithstanding the difference in age they soon developed a close personal and professional relationship. Verdross chose Simma as co-author for his Universal International Law.103 Simma was a congenial companion in this venture, who later also edited a renowned Commentary on the Charter of the United Nations.104 Simma considers himself ‘an outsider to the philosophy of law, including the tradition of natural law. My position towards the great schools of legal philosophy is rather eclectic: I consider that none of them can give an all-embracing, definite explanation of, or justification for, the phenomenon of law, but I am also convinced that they do not exclude each other, that, on the contrary, each of them can unveil and 102

Bruno Simma, Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge, Berlin: Duncker & Humblot 1972. Earlier, Simma had already published a book on reciprocity in international customary law, Das Reziprozitätselement in der Entstehung des Völkergewohnheitsrechts, München: Wilhelm Fink, 1970. 103 Universelles Völkerrecht, 1st ed. (Berlin: Duncker & Humblot, 1976). 104 Bruno Simma (ed.), Charta der Vereinten Nationen. Kommentar, München: Beck, 1991; Bruno Simma et al. (eds.) Commentary on the Charter of the United Nations, New York: Oxford University Press, 1991, 3rd ed. 2012.

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illuminate aspects of international law which remain inaccessible or off-limits to the other(s).’105 But though he never became a natural lawyer himself, he believes that ‘ultimately, there is no escape from the issue of natural justice. The universalistic philosophy of international law ranging from the Spanish authors of the Golden Age to the works of Alfred Verdross is in need, therefore, of being introduced into the debate on the current political movement from individualism towards the recognition of a true international community.’106 Simma’s doctrinal writings reflect his positive attitude towards the postulates deriving from natural law for the international community and its legal order. As a judge at the International Court of Justice, Simma had no sympathy with the Court when he believed that the latter had failed to live up to the demands of present-day’s international relations. In his Declaration to the Court’s Advisory Opinion concerning Accordance with international law of the unilateral declaration of independence in respect of Kosovo,107 he reproached the Court for sticking to the obsolete concept of the consensual nature of international law108 instead of analysing the substantive side of the problem from the point of view of public law ideas, an approach that would have been more adequate for the contemporary international community.109 Simma generally regrets that ‘within international law [. . .] the little theoretical-philosophical attention the discipline can muster is focused 105

Bruno Simma, The Contribution of Alfred Verdross to the Theory of International Law, in: European Journal of International Law, 6, 1995, pp. 33-54, at p. 34. 106 Ibid., at p. 38. 107 ICJ Reports 2010, p. 403, at pp. 478 et seqs. 108 ‘The underlying rationale of the Court’s approach reflects an old, tired view of international law, which takes the adage, famously expressed in the “Lotus” Judgment, according to which restrictions on the independence of States cannot be presumed because of the consensual nature of the international legal order (‘Lotus’, Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p. 18). As the Permanent Court did in that case (ibid., pp. 19-21), the Court has concluded in the present Opinion that, in relation to a specific act, it is not necessary to demonstrate a permissive rule so long as there is no prohibition. In this respect, in a contemporary international legal order which is strongly influenced by ideas of public law, the Court’s reasoning on this point is obsolete. [. . .B]y upholding the Lotus principle, the Court fails to seize a chance to move beyond this anachronistic, extremely consensualist vision of international law. The Court could have considered the scope of the question from an approach which does not, in a formalistic fashion, equate the absence of a prohibition with the existence of a permissive rule [. . .]’ Ibid., at pp. 478 et seq. 109 ‘In this light, I believe that the General Assembly’s request deserves a more comprehensive answer, assessing both permissive and prohibitive rules of international law. This would have included a deeper analysis of whether the principle of self-determination or any other rule (perhaps expressly mentioning remedial secession) permit or even warrant independence (via secession) of certain peoples/territories. Having said this, I do not consider it an appropriate exercise of my judicial role to examine these arguments in extenso; therefore, on this point, I shall content myself simply with declaring that the Court could have delivered a more intellectually satisfying Opinion, and one with greater relevance as regards the international legal order as it has evolved into its present form, had it not interpreted the scope of the question so restrictively. To treat these questions more extensively would have demonstrated the Court’s awareness of the present architecture of international law.’ Ibid., at p. 480.

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on other issues of a merely formal-analytical nature’.110 Probably, however, nothing more can be expected from a World Court in a world the value basis of which is increasingly disintegrating. In his aforementioned overview, Waldemar Hummer points out that Austrian scholars have been prominent in forging Austrian foreign policy after World War II, in particular in the areas of neutrality, European integration and security policy. If these activities have not resulted in noteworthy contributions to the international legal orders, this is due to the fact that they were ‘situational’, i.e. directed to meet the needs of specific situations. Five neutrality doctrines—the ‘corset doctrine’, the ‘Frank Sinatra doctrine’, the ‘identity doctrine’, the ‘osmosis doctrine’ and the ‘avocado doctrine’111—and seven additional ‘restrictive’ neutrality doctrines with the purpose of justifying, as Austria’s interests commanded and the global political situation permitted, Austrian membership in the United Nations and its security council, accession to the European Communities and membership in the European Union,112 more recently also participation in the Common Security and Defence Policy on the basis of Article 43 TEU113 are certainly proof of the ingenuity of Austrian scholars and diplomates but perhaps less suited for making a lasting impact upon the formation of the international legal order, unless, of course, one regards Austria’s flexibility in interpreting her international status and ensuing obligations as an example for the possibilities opened up by the principle of rebus sic stantibus, which, by the way, does not enjoy much popularity and is therefore rarely invoked because its applicability in a given case is almost always contested by the other side. This is regrettable because the relevance of a fundamental change of circumstances—contained in Article 62 VCLT as a ground for the termination of treaties—lends itself to generalisation beyond the law of treaties since it is but the concretisation of the basic principle of good faith (bona fides) that—according to Alfred Verdross—pervades

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Ibid., at p. 38. Hummer, p. 357. 112 Hummer, p. 357. 113 Article 42 Paragraph 1 TEU: ‘1. The common security and defense policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.’ Article 43 Paragraph 1 TEU: ‘The tasks referred to in Article 42(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.’ – See Gunter Hauser, Politische Bildung im Österreichischen Bundesheer. Truppenbeteiligungen Österreichs. Landesverteidigungsakademie Vienna, January 2016. 111

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the whole of international law.114 If all parties to an international dispute were prepared to enter into bona fide negotiations, reconsideration of international obligations ‘which have become inapplicable’ and consideration of international conditions ‘whose continuance might endanger the peace of the world’—as once provided in Article 19 of the League of Nations’ Covenant—could be undertaken without unnecessary problems and should lead to the peaceful settlement of this dispute on the basis of law. If I have, in the context of Austria’s foreign policy, referred to scholars and diplomats alike, I would like to mention here, perhaps as a specific aspect of Austrian doctrine and practice of international law, that there has always existed a close cooperation between the two, scholars having served as advisers to, or even temporary members of, the Austrian Foreign Office.115 This tradition goes back to Alfred Verdross and Stephan Verosta and was continued by Karl Zemanek and others. One of them, Gerhard Hafner (born 1943), became a member of the International Law Commission for the period 1997–2001 and First Vice-President of the ILC during the 2001 session; he is a member of the Institut de Droit International. In turn, members of the Foreign Office have engaged in teaching, in the function of honorary professors or lecturers, at various universities. Most of the latter have been heads of, or directors in, the Department (later Division) of International Law (Völkerrechtsbüro). Kurt Herndl (born 1932) served, inter alia, as UN Assistant Secretary General for Human Rights from 1982 to 1981 and later was appointed honorary professor at the Paris Lodron University Salzburg. Helmut Türk (born 1941) was a judge at the International Tribunal for the Law of the Sea from 2005 to 2015 and served as its vice-president in 2008–2011. Erich Kussbach (born 1931) was appointed Professor of International Law at the Catholic Pázmány Péter University in Budapest and Honorary Professor for Humanitarian International Law at the Johannes Kepler University Linz. Franz Cede (born 1945) was appointed Professor of Diplomacy at the Andrássy University in Budapest. Helmut Tichy (born 1958) and Andreas Kumin (born 1965) were both appointed honorary professors at the Karl Franzens University in Graz for international law and European law, respectively. Apart from this special relationship with the Austrian Foreign Office, Austrian scholars have also served as advisors to other subjects of international law, especially the Holy See. Others have occupied teaching positions abroad, at universities both within and outside of Europe, some full time, some part time, some in a paid position and some on an honorary basis. There can be no doubt that their commendable activities have contributed to the reputation of Austrian legal doctrine all over the world, but it would be difficult to pick out any particular person or activity that 114

Völkerrecht, 5th ed., Vienna: Springer, 1964, p. 131, with reference to Cornelius van Bynkershoek, Quaestionum iuris publici libri duo (1737), II, cap 10: ‘Hanc si tollis, tollis [ . . . ] ipsum ius gentium’. 115 Presently, the official name of the Foreign Office is ‘Federal Ministry for Europe, Integration and Foreign Affairs’, but in recent years the designation has slightly varied with the successive governments.

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directly affected the formation of the present international legal order in a perceptible manner. Mention should be made, however, of the treatises on international law and related fields by Austrian scholars after World War II. If I say ‘and related fields’, this extension is required because it has been primarily them to whom has fallen the introduction of European law as an independent subject of law in Austria. Verdross’ International Law116 has already been mentioned, also Verdross’ and Simma’s Universal International Law.117 Ignaz Seidl-Hohenveldern wrote two treatises, one on International Law118 and one on the Law of International Organisations, which also comprised EC law.119 Later editions were co-authored by Gerhard Loibl, Christoph Thun-Hohenstein and Torsten Stein. Peter Fischer and Heribert Franz Koeck published treatises on International Law120 and on The Law of International Organisations.121 Special mention has to be made of the Austrian Manual of International Law,122 which was edited by Hanspeter Neuhold, Waldemar Hummer and Christoph Schreuer and which contained contributions by all leading Austrian international lawyers. Presently, the editor is August Reinisch.123 Seidl-Hohenveldern’s Law of International Organisations Including Supranational Communities, which served as a bridge to EC law, has already been mentioned. Treatises on EC/EU law were also written by Waldemar Hummer and Michael Schweitzer124 and continued, in revised form, with Walter Obwexer as co-author;125 by Peter Fischer and Heribert Franz Koeck, whose Europarecht also comprised the law of other European organisations, especially the Council of Europe and the Organization for Security and Cooperation in Europe;126 and also by Christoph Thun-Hohenstein, Franz Cede and Gerhard Hafner.127 More recently, treatises on EU law have been published by Gerhard Hafner, Andreas J. Kumin

116

Völkerrecht, 5th ed., Vienna: Springer, 1964. Universelles Völkerrecht, 1st ed. Berlin: Duncker & Humblot 1976, 3rd ed. ibid., 1984. 118 Völkerrecht, 10th ed. Cologne-Berlin-Bonn-Munich: Carl Heymans, 2005. 119 Das Recht der internationalen Organisationen einschließlich der supranationalen Gemeinschaften, 5th ed. Cologne-Berlin-Bonn-Munich: Carl Heymans, 1992. 120 Völkerrecht, 6th ed., Vienna: Linde, 2004. 121 Heribert Franz Koeck/Peter Fischer, Das Recht der internationalen Organisationen, 3rd ed. Vienna: Linde, 1997. 122 Österreichisches Handbuch des Völkerrechts, (Vienna: Manz, 1st ed. 1983, 4th ed. 2004). 123 th 5 ed., (Vienna: Manz, 2013). 124 Europarecht, 1st ed. (Frankfurt/M.: Metzner 1984), 5th ed. (Neuwied: Luchterhand, 1996). 125 Michael Schweitzer/Waldemar Hummer/Walter Obwexer, Europarecht. Das Recht der Europäischen Union, (Vienna: Manz, 2007). 126 Europarecht, 1st ed. (Eisenstadt: Prugg-Verlag, 1986), The 4th ed., Vienna: Linde, 2002, was co-authored by Margit Maria Karollus. 127 Europarecht, 6th ed. (Vienna: Manz, 2008). 117

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and Friedl Weiss,128 by Franz Leidenmuehler129 and by Marcus Klamert, with contributions by Peter Thalmann.130 I shall also mention Werner Schroeder (born 1962),131 who—though not Austrian by nationality—has been teaching at the Leopold Franzens University of Innsbruck since 2001 and director of the (renamed) institute for European and international law since 2005. Mention should also be made here of Peter Hilpold (born 1965), who, after having studied Law, Economy, Business Administration and Interpretation and Translation Studies, pursued the training for attorneys at law in Italy and was admitted to the Italian Bar in 1992. He received the venia legend for International Law, European Law and Comparative Public Law in 2001 and in the same year was appointed associate professor. He has taught at various universities, inter alia in Innsbruck and in Padova. In that part of his abundant publications which deal with international law, Peter Hilpold, though not a direct descendent from the Vienna School of International Law and Legal Philosophy, has dealt with central issues of the international legal order in a way that shows his affinity to this school, always in support of international structures and processes that are oriented on the value of international justice. As editor or co-editor of important international journals and series of publications, he disposes of additional means to bring his beneficial influence in the service of the international common good to bear. In order to sum up the influence of Austrian international lawyers on the formation of the present international legal order, one has to bear in mind that this can be done only after having restated what is understood by ‘formation of the present international legal order’. The adjective ‘present’ does not need much explanation; it is obvious that it indicates the international order as it exists today. In contrast, ‘international legal order’ needs a precision. There is a vast number of international treaties, the entire body of customary law and, in addition, an open number of general principles of law. It is obvious that not all rules contained in, or deriving from, these sources of international law have equal weight in the characterisation of the international legal order. What it is all about is the fundamental principles of the international legal order and the corresponding structure of the international community, together with those rules that are necessary for creating and preserving the common good—peace, freedom and welfare for all—which is the fundament for living together also in a pluralistic society.132 To have revived and elaborated, with special regard to the requirements of the international community at the close of the second millennium, the view that the purpose of international law is the creation and preservation of the common good of

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Recht der Europäischen Union, 1st ed. (Vienna: Manz, 2013), 2nd ed. ibid. 2019. Europarecht. Die Rechtsordnung der Europäischen Union (Linz: Pedell Wissenschaftsverlag, 3rd ed., 2017). 130 EU-Recht, 2nd ed. (Vienna: Manz, 2018). 131 Grundkurs Europarecht, 4th ed. (Munich: Beck, 2016). 132 Heribert Franz Koeck, Recht in der pluralistischen Gesellschaft, Vienna: Manz 1998. 129

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all mankind (bonum commune humanitatis) and that ignoring or, worse, denying this purpose would prevent peaceful coexistence and fruitful cooperation of states is therefore the decisive contribution of Austrian scholars to the present international legal order. Credit for having done so is due to Alfred Verdross and to the Vienna School of International Law and Legal Philosophy founded by him and also to all Austrian scholars and legal practitioners who—without any special connection to Verdross and/or his school—have taken up these ideas and have tried to propagate them/it and/or to work for their/it implementation. Kelsen and his Vienna School of Legal Theory have failed to make a comparable contribution. That is not so surprising if one considers that Kelsen had no intellectual access to the essential questions of human life. For a scholar who had devoted a good part of his main opus, the Pure Theory of Law,133 to demonstrate that the central idea of law, i.e. justice, is a meaningless notion without counterpart in reality, the common good, or quite simply good and bad, had no objective value. His theory could provide the formal frame for any system, including the Bolshevist and National Socialist, a fact Kelsen invoked even as a merit before World War II but of which he did not want to be reminded after the war. It is the tragedy of legal theorists—who are, in the great majority, legal positivists because legal theory is the best that legal positivists can have if they long for more than simply the intra-system interpretation and application of positive law—that they have to restrict themselves to making feats within their own system. Whenever they undertake to deal with borderline questions, they are in danger of giving answers that are obviously ludicrous or grotesque. Thus, Kelsen denied that, in order to be an expression of customary law, state practice has to be accompanied by the opinion that this conduct is legally required (opinion iuris) or necessary (sive necessitatis). His denial of the subjective element of customary law was the result of Kelsen’s position that a state, not being a human being, could not have any opinion or conviction. Here, Kelsen deliberately ignored the fact that a state—as any legal (as opposed to natural) person—can act through its organs and that these organs, because they are composed of human beings, may very well have an opinion and that this opinion, as any act or omission of those organs, is imputable to the state. Kelsen’s position was ludicrous because, on the one hand, no one had ever doubted that the state was no human being and, on the other, at Kelsen’s lifetime, everyone (or, at any rate, every lawyer) had learned that the state was acting through its organs. And it was grotesque because for positivists, the subjective element of customary law is the only criterion by which legally relevant state practice can be distinguished from legally irrelevant one, for what is legally relevant or irrelevant depends, for the positivist, solely from positive law: what is part of positive law is legally relevant, and what is not part of it, legally irrelevant. But this distinction fails where what is legally relevant is not determined by some legislator but has to be

133

Reine Rechtslehre, 2nd ed. Vienna 1960.

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deduced from practice. And for doing so, the only ‘positive’ criterion is the opinion of the state or states that set(s) the contact in question. Another example of a grotesque idea that was supported by a number of positivists between the two world wars is constituted by an opposite extreme in the handling of the subjective element of customary law. To consider the opinion iuris an evidence for an already existing customary law is one thing; to require it as a constitutive element for the creation of customary law is quite another. If a certain conduct (practice) plus the accompanying conviction that the conduct is legally required were necessary for creating customary law, no customary law could be or could have ever been created. The first state that initiates a new practice has no predecessor and therefore no state that could already have had an opinio iuris concerning this matter. Consequently, the conduct of the first state is not accompanied by a conviction that this is legally required. The second state, even if it follows the practice of the first, cannot believe that it is legally required to do so because the practice of the first state, not having been accompanied by an opinion iuris, had not been the expression of customary international law. The third state, even if it follows the practice of its two predecessors, again cannot believe that it is legally required to do so because so far no opinion iuris and therefore no customary law exist in this matter. If we continue on this line down to the last state, no customary law would have emerged because no state could have ever had the necessary opinio iuris. Since, however, the existence of an opinio iuris is an undeniable fact, positivists had to find a way out of the contradiction between reality and their theory. The solution they offered was an error. Some state in the line had erroneously assumed that previous states had acted with opinion iuris and had therefore joined in the practice in the belief that it was legally required to do so. The next state had to then be the first to find a practice accompanied by opinio iuris and thus the customary law it was bound to follow. To rest the existence of customary international law, besides treaty law, the most important source of international law, on an error is an idea that demonstrates the helplessness of positivists when they touch upon the limits of their own system. Actually, the creation of new—in contrast to the ascertainment of already existing— customary law cannot be explained by the interaction of its two elements. It can be explained only by the principle of ‘good order’ that is fundamental for living together. It rests on the preference of order over chaos and enjoins everyone, man and state alike, to conform to an already existing practice, thus forbidding initiation of a new, deviating practice without compelling reasons. But the principle of ‘good order’ is outside the reach of a positivist for whom ‘good’ and ‘bad’ are meaningless notions, empty shells unless filled by positive law. Hersch Lauterpacht once characterised Kelsen’s interpretation of Article 2 Paragraph 6 UN Charter134 to the effect that even non-Member States of the United

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The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

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Nations were obliged to take part in the organization’s system of collective security as an expression of the author’s ability to draw the greatest measure of absurdity from a concededly imperfect provision.135 I think that this judgment about one of the most prominent positivists and legal theorists lends itself to generalisation. If Kelsen and his pure theory of law have survived, even remained renowned, after World War II, this has two different reasons. In communist countries, scholars who wanted to avoid dealing with the Marxist-Leninist theory of state and law, which they did not want to praise but which to criticise would have been too dangerous, delved into legal theory where they could leave all political aspects of law aside. (The same was true for legal history, especially if it remained descriptive of facts and rules and refrained from entering into social theory.) It was only after World War II that natural law thinking became again the basis of international law, if not consciously then in practice. Experiences with the total war waged by Nazi Germany and Japan, and with the abuse of the notion of law for totalitarian ends in total disregard for human dignity, brought a return of politics to traditional values of justice. Thus, Verdross’ concept of justice as the idea behind law found reflection in the Charter of the United Nations. Article 1 of the Charter lists among the purposes of the United Nations ‘to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes’.136 In the Charter’s preamble, the conclusions from justice are more broadly stated in ‘the peoples of the United Nations’ reaffirmation of their ‘faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, to promote social progress and better standards of life in larger freedom’.137 The same applies to Verdross’ monism with the primacy of international law that is recognised in the Charter’s preamble by calling for the establishment of ‘conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’.138 Verdross lived to see that considerations of natural justice played an ever greater role in international relations. This is no wonder, given the fact that since the 1960s, the international community had to come to grips with the process of decolonisation139 and the problems of the developing countries,140 two challenges that could not have been met by just referring to traditional legal concepts and by

135

As quoted by Rosalyn Higgins, The development of international law through the political organs of the United Nations, Oxford: Oxford University Press, 1963. 136 Italics supplied. 137 Cf. Charter of the United Nations, Preamble, paragraphs 1, 2 and 4. 138 Cf. Charter of the United Nations, Preamble, paragraph 3. Italics supplied. 139 Cf. Albert Bleckmann, Decolonisation, in: Rudolf Bernhardt (ed.) Encyclopedia of Public International Law, Vol. I, (Amsterdam etc.: North Holland, 1992), pp. 972-976. 140 Cf. Arghyrios A. Fatouros, Developing States, in: ibid., pp. 1017-1024.

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making feats within a closed system of legal theory, however brilliant.141 The adoption of the New International Economic Order by the General Assembly in 1974,142 together with a Plan of Action and a Charter of Economic Rights and Duties of States,143 bears witness to this paradigmatic change in international law,144 as does the fact that the Security Council has come to regard serious and persistent violation of human rights as much a ground for sanctions against a state as the threat or use of force.145 Another big step forward in the same direction was the unanimous adoption by the Member States of the United Nations, in the Outcome Document of the World Summit 2005, of the ‘Responsibility to Protect’, according to which each individual state146 and the international community as a whole147 have the responsibility ‘to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. In order to fulfil this obligation, the United Nations undertook ‘to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII [. . .] should peaceful means be inadequate and national authorities manifestly fail to protect their populations’ accordingly.148 The Security Council, on its part, accepted the R2P in Resolution 1674, adopted in April 2006, and has reaffirmed its commitment to the R2P in several later resolutions up to 2013. However, when the intervention in Libya based on Resolutions 1970, 1973 and 2016 of 2011 and 2040 of 2012 resulted in the overthrow of the Ghaddafi regime, Russia argued that the operation had exceeded its mandate and— fearing the same might happen to the Assad regime in Syria, a close ally of Russia— with the support of the PR of China—vetoed all R2P resolutions regarding the situation in Syria, notwithstanding the otherwise broad support for such a resolution not only in the Security Council but also in the General Assembly. The consequent failure of the United Nations to protect the Syrian population resulted in one of the 141

According to Verdross, only international law based on considerations of justice could fulfil this task. Cf. Alfred Verdross/Heribert Franz Koeck, Natural Law: The Tradition of Universal Reason and Authority, in: MacDonald/Johnston (eds), The Structure and Process of International Law (1983), pp. 17-50. 142 Cf. Christian Tomuschat, New International Economic Order, in: Bernhardt (ed.) Encyclopedia of Public International Law, Vol. III (Amsterdam: North Hollannd 1997), pp. 578-582. 143 Cf. Ernst-Ulrich Petersmann, Charter of Economic Rights and Duties of States, in: Bernhardt (ed.) Encyclopedia of Public International Law, Vol. I, (Amsterdam: North Hollannd 1992), 561-566. 144 Cf. Peter Fischer, Gestaltwandel im Internationalen Wirtschaftsrecht, in: Waldemar Hummer (ed.), Paradigmenwechsel im Völkerrecht zur Jahrtausendwende (Vienna: Manz, 2002), pp. 209-233. 145 Cf. Heribert Franz Koeck, Legalität und Legitimität der Anwendung militärischer Gewalt. Betrachtungen zum Gewaltmonopol der Vereinten Nationen und seinen Grenzen, in: Zeitschrift für öffentliches Recht, 54, 1999, pp. 133-160. 146 No. 138. 147 No. 139. 148 See Peter Hilpold, The Responsibility to Protect (R2p): A New Paradigm of International Law? Leiden-Boston: Brill & Nijhoff, 2014.

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biggest humanitarian tragedies since the end of World War II and triggered a massive movement of refugees, which, in 2015, reached Europe and aggravated the already existing refugee problem in the European Union and its Member States perceptibly. Although no immediate solution for Syria is discernible, this does not mean that the principle of R2P is defunct, but it cannot work within the United Nations if one state that is, or is backed by, a permanent member of the Security Council is not willing to fulfil its obligations under this principle. This does not exclude execution of the principle outside the UN system in the form of a humanitarian intervention.149 Since, however, this might lead to a military confrontation of the great powers, any such action outside the United Nations is not only a matter of principle but also a question of expedience. There can be no doubt that the international community has developed, after World War II, in a direction that was mapped out by Alfred Verdross and propagated—and where possible implemented—by members of his school and those in Austria and abroad who, even without having a direct relation to it, adhered to the same ideas. This development is tangible in fundamental legal instruments like the UN Charter (1945) or the Universal Declaration of Human Rights (1948) and in many other important international treaties, declarations and resolutions. The lockstep between the teachings of Verdross and his school and the implementation of corresponding political demands in and through international instruments can be best explained by the title of a paper that Verdross contributed, as co-author, to a book that was published only after his death.150 The paper was entitled ‘Natural Law: The Tradition of Universal Reason and Authority’. It should not come as a surprise that the international community has to follow, at least in the long run, the commands of reason. Of course, the voice of reason is a soft one. It might not always be heard for the shrill noise made by those who pursue their interests regardless of the rights of others. But it does not rest until it has gained a hearing. Sooner or later, reason will overcome even those who engage in terrorism, may they be individuals, political movements or states.

149

Cf. Heribert Franz Koeck, Legalität und Legitimität der Anwendung militärischer Gewalt. Betrachtungen zum Gewaltmonopol der Vereinten Nationen und seinen Grenzen, in: Zeitschrift für öffentliches Recht, Vol. 54, 1999, pp. 133-160; Heribert Franz Koeck Die humanitäre Intervention, in: Gustav Gustenau (ed.), Humanitäre militärische Intervention zwischen Legalität und Legitimität, Tagungsband des Instituts für Internationale Friedenssicherung, Vienna 2000, pp. 25-58. 150 Ronald St. J. Macdonald/Douglas M. Johnston (eds.), The Structure and Process of International Law: Modern Essays in Legal Philosophy, Doctrine and Theory, (Den Haag–Boston–Lancaster: Martinus Nijhoff, 1983), pp. 17-50.

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Margit Maria Hintersteininger, Der Kosovo-Konflikt und die Renaissance der bellum iustumDoktrin, in: 99 Wiener Blätter zur Friedensforschung 2/1999, 24-30. Waldemar Hummer/Michael Schweitzer, Europarecht, 1st ed. (Frankfurt/M.: Metzner 1984). Waldemar Hummer/Michael Schweitzer, Europarecht, 5th ed. (Neuwied: Luchterhand, 1996). Georg Jellinek, Allgemeine Staatslehre, 1st ed. (Berlin: O. Häring, 1900). Hans Kelsen, Reine Rechtslehre, 1st ed. (Leipzig and Vienna: Deuticke 1934). Hans Kelsen, Reine Rechtslehre, 2nd ed. (Vienna: Deuticke 1960). Hans Kelsen, Pure Theory of Law, English translation of the 1960 edition by Max Knight (Berkeley: University of California Press, 1967). Jens Kersten/Georg Jellinek, in: Enzyklopädie der Rechtspilosophie, http://www.enzyklopaedierechtsphilosophie.net/Joomla/components/com_joomlawiki/index.php?title¼Jellinek,_Georg. Marcus Klamert, EU-Recht, 2nd ed. (Vienna: Manz, 2018). Heribert Franz Koeck, Die völkerrechtliche Stellung des Heiligen Stuhls. Dargestellt an seinen Beziehungen zu Staaten und internationalen Organisationen (Berlin: Duncker & Humblot 1975). Heribert Franz Koeck, Alfred Verdross – Ein österreichischer Rechtsgelehrter von internationaler Bedeutung. Schriftenreihe der Niederösterreichischen Juristischen Gesellschaft, Vol. 56, 1991a. Heribert Franz Koeck, Leben und Werk des österreichischen Rechtsgelehrten Alfred Verdross, in: 42 Zeitschrift für öffentliches Recht 1991b, pp. 31-57. Heribert Franz Koeck, Vita ed opera del giurista austriaco Alfred Verdross, in: Otto Kresten/Adam Wandruszka (eds.), 34/35 Römische Historische Mitteilungen 1992/93, pp. 299-326. Heribert Franz Koeck, Recht in der pluralistischen Gesellschaft (Vienna: Manz 1998). Heribert Franz Koeck, Legalität und Legitimität der Anwendung militärischer Gewalt. Betrachtungen zum Gewaltmonopol der Vereinten Nationen und seinen Grenzen, in: 54 Zeitschrift für öffentliches Recht 1999, pp. 133-160. Heribert Franz Koeck Die humanitäre Intervention, in: Gustav Gustenau (ed.), Humanitäre militärische Intervention zwischen Legalität und Legitimität, Tagungsband des Instituts für Internationale Friedenssicherung, Vienna 2000, pp. 25-58. Heribert Franz Koeck, Alfred Verdross – A Visionary of Contemporary Doctrine and Practice of International Law, in: Studia Iuridica Torunensia, 8/2011, pp. 7-33. Heribert Franz Koeck, The Impact of Francisco de Vitoria’s International Legal Doctrine Upon the ‘Vienna School of International Law and Legal Philosophy’ of the Twentieth Century, in: José María Beneyto/Carmen Román Vaca (eds.), New Perspectives on Francisco de Vitoria. Does International Law lie at the heart of the origin of the modern world? (Madrid: CEU Ediciones, 2014), pp. 53-131. Heribert Franz Koeck, Alfred Verdross – Sein wissenschaftliches Werk. Eine Einführung aus Anlass der Sammlung seiner Schriften, in: Heribert Franz Koeck/Herbert Schambeck (eds.), Alfred Verdross – Gesammelte Schriften, 4 vols, Vol. I, (Vienna: Verlag Österreich, 2019), pp. xxxi-cxviii. Heribert Franz Koeck/Peter Fischer, Das Recht der internationalen Organisationen, 3rd ed. (Vienna: Linde, 1997). Franz Leidenmuehler, Europarecht. Die Rechtsordnung der Europäischen Union, 3rd ed. (Linz: Pedell Wissenschaftsverlag, 2017). Franz Leidenmühler, Kollabierter Staat und Völkerrechtsordnung. Zur Aktualität der Westfälischen Ordnung, entwickelt an Fragen des Wegfalls effektiver Staatsgewalt. Neue Juristische Monographien, Bd. 62 (Vienna: Neuer Wissenschaftlicher Verlag, 2011). Ronald St. J. Macdonald/Douglas M. Johnston (eds.), The Structure and Process of International Law: Modern Essays in Legal Philosophy, Doctrine and Theory, (Den Haag–Boston– Lancanster: Martinus Nijhoff, 1983), pp. 17-50. Pasquale Stanislao Mancini, Prelezione al corso di dritto internazionale e marittimo. Della nazionalità come fondamento del dritto delle genti (Turino: Eredi Botta, 1851). Johannes Messner, Das Naturrecht. Handbuch der Gesellschaftsethik, Staatsethik und Wirtschaftsethik, 7th ed. (Berlin: Duncker & Humblot 1984).

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Herbert Miehsler, Südtirol als Völkerrechtsproblem (Graz-Vienna: Styria, 1962). Hanspeter Neuhold/Waldemar Hummer/Christoph Schreuer, Österreichisches Handbuch des Völkerrechts, 1st ed. (Vienna: Manz, 1983). Hanspeter Neuhold/Waldemar Hummer/Christoph Schreuer, Österreichisches Handbuch des Völkerrechts, 4th ed. (Vienna: Manz, 2004). Karl Josef Partsch, Individuals in international law, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. II, (Amsterdam et al.: North Holland), pp. 957-962. Ernst-Ulrich Petersmann, Charter of Economic Rights and Duties of States, in: Bernhardt (ed.) Encyclopedia of Public International Law, Vol. I, (Amsterdam: North Hollannd 1992), pp. 561-566. Ernst Reibstein, Die Anfänge des neueren Natur- und Völkerrechts. Studien zu den Controversiae illustres des Ferdinand Vasquius (1559) (Bern: Verlag Paul Haupt, 1949). Ernst Reibstein, Johannes Althusius als Fortsetzer der Schule von Salamanca. Untersuchungen zur Ideengeschichte des Rechtsstaates und zur altprotestantischen Naturrechtslehre, Freiburger rechts- und staatswissenschaftliche Abhandlungen, Vol. 5 (Karlsruhe: C. F. Müller 1955). August Reinisch, Österreichisches Handbuch des Völkerrechts, 5th ed. (Vienna: Manz, 2013). Georges Scelle, Manuel elementaire de droit international public (Paris: Domat-Monchristien, 1943) Herbert Schambeck, Alfred Verdross als Rechtsphilosoph und die Wiener Rechtstheoretische Schule, in: Peter Fischer/Margit Maria Karollus/Sigmar Stadlmeier (eds.), Die Welt im Spannungsfeld zwischen Regionalisierung und Globalisierung. Festschrift für Heribert Franz Koeck (Wien: Linde 2009), pp. 527-543. Werner Schroeder, Grundkurs Europarecht, 4th ed. (Munich: Beck, 2016). Michael Schweitzer/Waldemar Hummer/Walter Obwexer, Europarecht. Das Recht der Europäischen Union (Vienna: Manz, 2007). Ignaz Seidl-Hohenveldern, Völkerrecht, 8th ed. (Cologne-Berlin-Bonn-Munich: Carl Heymans 1994). Ignaz Seidl-Hohenveldern, Alfred Verdross (1890-1980). Biographical Note with Bibliography, in: 6 European Journal of International Law, 1995, pp. 103-115. Ignaz Seidl-Hohenveldern, Völkerrecht, 10th ed. (Cologne-Berlin-Bonn-Munich: Carl Heymans, 2005). Ignaz Seidl-Hohenveldern/Gerhard Loibl, Das Recht der Internationalen Organisationen einschließlich der supranationalen Gemeinschaften, 5th ed. (Cologne-Berlin-Bonn-Munich: Carl Heymans 1992). Bruno Simma, Das Reziprozitätselement in der Entstehung des Völkergewohnheitsrecht, (München: Wilhelm Fink, 1970). Bruno Simma, Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge (Berlin: Duncker & Humblot 1972). Bruno Simma (ed.), Charta der Vereinten Nationen. Kommentar (München: Beck, 1991). Bruno Simma, The Contribution of Alfred Verdross to the Theory of International Law, in: European Journal of International Law, 6, 1995, pp. 33-54. Bruno Simma et al. (eds.), Commentary on the Charter of the United Nations (New York: Oxford University Press, 1991). Bruno Simma et al. (eds.), Commentary on the Charter of the United Nations, 3rd ed. (Oxford: Oxford University Press, 2012). Sigmar Stadlmeier, Völkerrecht, 2 vols, 8th ed. (Vienna: LexisNexis, 2017). Lilly Sucharipa-Behrmann in: Gerhard Hafner/Winfried Lang/Hanspeter Neuhold/Lilly SucharipaBehrmann (eds.), Völkerrecht zwischen normativem Anspruch und politischer Realität, Festschrift für Karl Zemanek (Berlin: Duncker & Humblot 1994), p. 523. Christoph Thun-Hohenstein/Franz Cede/Gerhard Hafner, Europarecht, 6th ed. (Vienna: Manz, 2008). Christian Tomuschat, New International Economic Order, in: Bernhardt (ed.) Encyclopedia of Public International Law, Vol. III, (Amsterdam: North Hollannd 1997), pp. 578-582.

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Heinrich Triepel, Völkerrecht und Landesrecht (Leipzig: C.L. Hirschfeld, 1899). Alfred Verdross, Grundlagen und Grundsätze des Völkerrechts in christlicher Schau, in: Schönere Zukunft, Vol. XIII, No. 16, 1938, pp. 385-387. Alfred Verdross, Grundlinien der antiken Rechts- und Staatsphilosophie, (Vienna: Springer, 1946). Alfred Verdross, Grundlinien der antiken Rechts- und Staatsphilosophie, 2nd ed. (Vienna: Springer, 1948). Alfred Verdross, Die Sicherung von ausländischen Privatrechten aus Abkommen zur wirtschaftlichen Entwicklung mit Schiedsklauseln, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 18, Issue 4, 1957/58, pp. 635-651. Alfred Verdross, Abendländische Rechtsphilosophie (Vienna: Springer, 1958). Alfred Verdross, Abendländische Rechtsphilosophie, 2nd ed. (Vienna: Springer, 1963). Alfred Verdross, Quasi-International Agreements and International Economic Transactions, in: Yearbook of World Affairs, Vol. 18, 1964a, pp. 230-247. Alfred Verdross, Völkerrecht, 5th ed. (Vienna: Springer, 1964b). Alfred Verdross, Gibt es Verträge, die weder dem innerstaatlichen noch dem Völkerrecht unterliegen?, in: Zeitschrift für Rechtsvergleichung, 1966, pp. 129-134. Alfred Verdross, Die Entstehung der christlichen Völkerrechtslehre und ihre Entfaltung durch die Päpste sowie durch das Zweite Vatikanische Konzil, ‚Ruf und Antwort‘, Schriftenreihe des Cartellverbandes der katholischen österreichischen Studentenverbindungen, des Cartellverbandes der Katholischen deutschen Studentenverbindungen und des Schweizerischen Studentenvereins, Heft 8, Vienna 1969. Alfred Verdross, Statisches und dynamisches Naturrecht (Freiburg: Rombach, 1971). Alfred Verdross, Die Quellen des universellen Völkerrechts (Freiburg: Verlag Rombach 1973). Alfred Verdross, Der klassische Begriff des bonum commune und seine Entfaltung zum bonum commune humanitatis, 28 Österreichische Zeitschrift für öffentliches Recht (1977a), pp. 143-162. Alfred Verdross, Erneuerung und Entfaltung der klassischen Völkerrechtslehre durch Pius XII., in: Herbert Schambeck (ed.), Pius XII. zum Gedächtnis (Berlin: Duncker & Humblot, 1977b), pp. 613-626. Alfred Verdross/Heribert Franz Köck, Natural Law: The Tradition of Universal Reason and Authority in: Ronald St. J. Macdonald & Douglas Millar Johnston (eds.), The Structure and Process of International Law: Modern Essays in Legal Philosophy, Doctrine and Theory (The Hague: Martinus Nijhoff Publishers, 1983), pp. 17-50. Alfred Verdross/Bruno Simma, Universelles Völkerrecht, 1st ed. (Berlin: Duncker & Humblot 1976). Alfred Verdross/Bruno Simma, Universelles Völkerrecht, 3rd ed. (Berlin: Duncker & Humblot 1984). Stephan Verosta, Iohannes Chrysostomos – Staatsphilosoph und Geschichtstheologe (GrazVienna-Cologne: Styria, 1960). Stephan Verosta, Die dauernde Neutralität. Ein Grundriss, (Vienna: Manzsche Verlags- und Universitätsbuchhandlung, 1967) Stephan Verosta, Theorie und Realität von Bündnissen: Heinrich Lammasch, Karl Renner und der Zweibund (1897-1914) (Vienna: Europa-Verlag 1971). Stephan Verosta/Ignaz Seidl-Hohenveldern, Die völkerrechtliche Praxis der Donaumonarchie von 1859 bis 1918: Eine Auswahl von Dokumenten, 2 vols., (Vienna: Austrian Academy of Science, 1996). Mathias Vogl, Franz Matscher zum 80. Geburtstag – Dank und Würdigung, in: Armin Bammer/ Gerhart Holzinger/Matthias Vogl/Gregor Wenda (eds.), Rechtsschutz gestern – heute – morgen. Festgabe zum 80. Geburtstag von Rudolf Machacek und Franz Matscher (Vienna: Neuer Wissenschaftlicher Verlag, 2008), pp. 31-35.

The Concept of International Law: The Italian Perspective Carlo Focarelli

1 Introduction There is hardly any peculiar Italian ‘concept’ or ‘conception’ of international law.1 It is safe to state that there are as many concepts or conceptions of international law as there are leading Italian international law scholars. Moreover, what is distinctively ‘Italian’ is very thorny to capture, and certainly my attempt here will meet the objections of those who do not feel that they fit into my picture.2 This chapter aims at investigating what, if any, may be the ‘essence’ of the Italian culture which underlies the perception of law and affects, at its roots, the scholarly construction of the concept of international law from an Italian perspective. After a few succinct observations on a sample of five of the leading Italian international law scholars of the last two centuries, who embraced as many different concepts of international law, I will focus on the thought of a few globally renowned Italian intellectuals, who may offer some clues into the ‘Italian way’ to law. I will assume that legal scholars express, and are expressions of, their cultural environment and that international law is constructed as a projection of the general idea of the law with which they are most familiar. Finally, nothing in the present chapter is aimed at either praising or censuring what is presented as being distinctively ‘Italian’, my main focus being analytical.

1 For similar statements in other contexts see, e.g., Chapters 1, 2 and 5, by Christian Tomuschat, Heribert F. Köck and Sir Michael Wood, in this volume. 2 As also noted, mutatis mutandis, by Andrea Hamann in Chapter 4 of this book with regard to the ‘French tradition’ of international law.

C. Focarelli (*) Roma Tre University, Rome, Italy © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 P. Hilpold (ed.), European International Law Traditions, https://doi.org/10.1007/978-3-030-52028-1_4

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2 Schools of Thought in International Law Investigation into ‘national’ conceptions or schools of international law often takes the form of a ‘contribution’ made to some larger perspective, such as the ‘European’ international law tradition or the ‘science’ of international law. The assumption is that there is a common enterprise in which (and for the ‘development’ of which) a number of different components have played a certain role. This common enterprise is often seen positively, although with its shades, and the ‘contribution’ made by the components tends to be defined in terms of ‘impact’. Once this theoretical framework is constructed, the analysis tends to become competitive: each component, e.g. each ‘national’ component, aims at demonstrating that it has indeed made a strong contribution to the common enterprise through one or the other of ‘its’ scholars. Certain visions will inherently fall out of the picture, such as those who see the ‘common enterprise’ itself negatively, in which case also making a contribution to it is anything but a positive exercise. Therefore, meanings may change depending on the context: for instance, for those who believe in the ‘science’ of international law, the demonstration that this or that author has made a contribution thereto has a ‘positive’ connotation, while the same contribution could be seen as negative by those who believe that there is and/or there should be no real science of international law and that international law is more a matter of prudence than science. Behind the debate, there is thus a tacit battlefield where the different components compete with one another to prove their relative major ‘importance’. In this context, Italian scholars will naturally tend to defend a meaningful Italian contribution to international law, and so will others. This framework of doctrinal competition is a good start for present purposes. It is somewhat striking to note how international law is scholarly constructed as a function of how national law is structured.3 In a sense, this is inevitable because jurists’ training in the university system is for the most part concerned with domestic law. This dependence mirrors the legal and institutional history of each particular country, a preferred branch of law (such as constitutional law or civil law) and, generally, the domestic law of a few Western states. The resulting picture is one, thus, where the struggle for international law as global law is also a struggle for this or that vision of international law as constructed on the basis of the national law of very few countries and legal traditions. Another key domestic factor to the construction of international law relates to the scope of the foreign policy of any particular country. International law is viewed differently, for good or ill, in countries that are more involved in global politics, such as the United States, compared to those that play a minor role. While in the former,

See David Kennedy, ‘The Disciplines of International Law and Policy’ 12 LJIL (1999) 17–18, (critically) noting that usually ‘when European international lawyers defend a methodological formalism, a focus on the state, or a fetish for courts, they can think of themselves as protecting European cultural patrimony against the cowboys’, i.e. the ‘United Statesean political project to jettison the welfare state in the name of un unrestrained market’ (ibid 34). 3

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generally, security is central, in the latter a ‘legalist’ and ‘humanitarian’ view of international law—as a law to be applied by the courts in a way similar to domestic law—may appear more correct. No less important is the need of governments to have international law scholars who defend their decisions in legal terms and provide them with specialized assistance. Although scholars may well preserve their independence and express criticism towards their governments, as Gerald Fitzmaurice did in the 1956 Suez crisis,4 on occasions this may not be appropriate to their position within the government. On balance, cases of resignation are rare, and it is fair to state that most lawyers tend to align with their government’s views and to make a case for its action.5 The ‘use’ of ‘embedded’ international lawyers by governments, even when a given decision is hardly defensible in legal terms, inevitably causes a trend in doctrine in favour of certain (nationalistic) positions rather than others. National variations overlap with regional,6 continental, transcontinental, and even local ones. While, on occasion, ‘American’ and ‘European’ laws are considered similar, as they both belong to the Western legal tradition, at other times they are starkly contrasted.7 On one account, for example, the US legal tradition has been depicted as ‘less formalist in method, more interdisciplinary, less court focused, less state focused, less philosophical, and more pragmatic’, based more on norm application and enforcement than on norm generation, and more on rule sceptics and policy wonks than its European counterpart.8 Other sufficiently unitary strands may have a transcontinental scope, such as TWAIL.9 At the other extreme of the spectrum, there are subnational, local variations associated with this or that university or research centre within the same country. What may appear paradoxical are the countless variations in a law that is deemed to be ‘common’ to all peoples. Fragmentation and conflict resurface even on the very meaning of a ‘law common to all’ among specialists belonging to the same legal tradition. Undoubtedly, a variety of views is frequent in all human affairs and does 4 Geoffrey Marston, ‘Armed Intervention in the 1956 Suez Canal Crisis: The Legal Advice Tendered to the British Government’ 37 ICLQ (1988) 773–817. 5 One honourable exception, for example, is the resignation of Elizabeth Wilmshurst, the Deputy Legal Adviser at the UK Foreign and Commonwealth Office, on 20 March 2003 in relation to the Iraq war in 2003. See . 6 Hélène Ruiz Fabri, ‘Reflections on the Necessity of Regional Approaches to International Law Through the Prism of the European Example: Neither Yes nor No, Neither Black nor White’ 1 AsianJIL (2011) 83–98. 7 See, in this vein, Richard H Pildes, ‘Conflicts Between American and European Views of Law: The Dark Side of Legalism’ 44 VaJIntlL (2003-2004) 145–67, contrasting European legalism with American realism in relation to the post-9/11 events. See also Emmanuelle Jouannet, ‘French and American Perspectives on International Law: Legal Cultures and International Law’ 58 MaineLRev (2006) 291–336; Guglielmo Verdirame, ‘“The Divided West”: International Lawyers in Europe and America’ 18 EJIL (2007) 553–80. 8 See Kennedy (n 3) 25–26, especially note 21, and at 29. 9 B.S. Chimni, ‘Is There an Asian Approach to International Law?’ (ASIL Conference 2009) at .

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not prevent international law from forming a common set of rules. However, if international law is socially constructed, this social construction is the combination and the result of a variety of very different perceptions, each one weighing differently on the end result. Inevitably, some perceptions are ‘more equal than others’, and all scholars tend to find themselves constantly engaging in a struggle to prevail over what international law is to be seen as ‘the’ international law in force worldwide.

3 Five Leading Italian International Law Scholars It would be superfluous to present here the most authoritative Italian international law scholars and their ‘concepts’ or ‘conceptions’ of international law. Others have done so,10 and hopefully a forthcoming book will collect the papers presented at an international conference held at EUI in April 2016.11 I would like to call the attention to five leading Italian scholars who embrace as many different conceptions of international law: Pasquale Fiore (naturalism), Dionisio Anzilotti (positivism), Rolando Quadri (realism), Roberto Ago (spontaneism) and Benedetto Conforti (anti-theorism). Their work is well known, and few remarks, without any historiographic ambition, will suffice for present purposes. This section’s conclusion is that the Italians have rarely contributed to international law in terms of creating innovative general theories. They have rather tended to embrace and ‘refine’ others’ theories with personal accents, in addition to providing novel theoretical frameworks on specific international law topics (such as international responsibility).

10

Angelo P Sereni, The Italian Conception of International Law (Columbia University Press 1943); Antonio Cassese, ‘Diritto internazionale’, in L Bonanate (ed), Studi internazionali (Edizioni della Fondazione Giovanni Agnelli 1990) 113–158; Francesco Salerno, ‘La Rivista e gli studi di diritto internazionale nel periodo 1906-1943’, 90 RivDirInt (2007) 305–43; Piero Ziccardi, ‘Evoluzione e traguardi della scuola italiana di Diritto internazionale nel XX secolo’, in Fernando M Mariño Menéndez (ed), El Derecho internacional en los albores del siglo XXI: Homenaje al profesor Juan Manuel Castro-Rial Canosa (Trotta 2002) 715–34; Enzo Cannizzaro, ‘La doctrine italienne et le développement du droit international dans l’après-guerre: entre continuité et discontinuité’ 50 AFDI (2004) 1–23; Francesco Messineo, ‘Is There an Italian Conception of International Law?’ 2 CJICL (2013) 879–905; Alessandra Gianelli, ‘Il contributo della dottrina italiana al tema della responsabilità internazionale degli Stati per fatto illecito: qualche osservazione’ 99 RivDirInt (2016) 1042–70. 11 ‘A History of International Law In Italy: The Development of International Law Scholarship in Italy and the Impact of Key Historical and Political Events on International Legal Studies’, 18-19 April 2016, a Workshop co-organised by the Academy of European Law and University of Roma Tre (Nehal Bhuta, EUI – Giulio Bartolini, Roma Tre), Villa Schifanoia, Florence.

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Pasquale Fiore (1837–1914)

Pasquale Fiore was born in Terlizzi (Puglia) in 1837 and died in Naples in 1914. He taught constitutional law and international law at the universities of Urbino, Pisa, Turin and Naples.12 In Fiore’s view, ‘international law is that which regulates and directs the relationships between nations’ (il diritto internazionale è quello che regola e dirige le relazioni delle nazioni tra loro),13 a law that should properly be called ‘the law of humankind’ (diritto del genere umano),14 whose foundation is the moral law (legge morale) ‘engraved in the conscience of all humans and known through reason’ (scolpita nella coscienza di tutti ed appresa dalla ragione).15 Since law is a necessity in every society, ‘law cannot be an effect or a creation of the being that it must govern, but rather of the mind . . . from which the nations and humankind derive their origin and existence’ (la legge non può essere un effetto o un prodotto dell’essere che deve regolare, ma sibbene della mente . . . da cui le nazioni e il genere umano ebbero origine ed esistenza).16 Similar to the earlier ‘fathers’ of modern international law (in particular Alberico Gentili and Giambattista Vico, to whom I will return below), Fiore grounded international law in natural law. In his view, ‘states must always respect the invincible law of nature’ (gli Stati devono sempre rispettare la legge invincibile di natura).17 Building on Cicero’s ideas that law is found in every society and rests on the natural law written on every man’s heart, Fiore embraced in particular, as a reflection of natural law, the doctrine of nationalities that had been defended by Pasquale Stanislao Mancini and the so-called Italian school of international law.18 As a result, one of the basic sources of law is ‘reason’, as detected by the ‘enlightened’ doctrine. Besides international natural (or rational) law and international positive (or voluntary) law, he envisaged ‘scientific law’ (Diritto scientifico) as the law that is worked out by scholars whose authority is ‘the more significant, the more limited international law is’, especially by providing ‘principles of law’ to be applied when a positive rule is lacking.19 From this perspective, Fiore was able to propose a ‘rational’ programme of ‘codification’ of international law so as to open it

12 Pasquale Fiore, Nuovo diritto internazionale pubblico secondo i bisogni della civiltà moderna (Casa Editrice e Tip. degli Autori-Editori 1865); Pasquale Fiore, Trattato di diritto internazionale pubblico (2nd edn UTET 1879–1884); Pasquale Fiore, Il diritto internazionale codificato e la sua sanzione giuridica (3rd edn UTET 1900). 13 Fiore, Nuovo diritto internazionale pubblico (n 12) 29. 14 Fiore, Il diritto internazionale codificato (n 12) 39, 97, 104. 15 Fiore, Nuovo diritto internazionale pubblico (n 12) 11. 16 Ibid 30. 17 Fiore, Trattato di diritto internazionale pubblico (n 12) I, 121. 18 For the Italian theory of nationalities see Enrico Catellani, ‘Les maîtres de l’École italienne du droit international au XIXe siècle’ 46 RdC (1934) 705–825; Luigi Nuzzo, Origini di una scienza: diritto internazionale e colonialismo nel XIX secolo (Vittorio Klostermann 2012) 87–168. 19 Fiore, Il diritto internazionale codificato (n 12) 81–3.

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to further developments towards the progressive replacement of force by law in the international society. Building on a theory of legal personality as ‘jure suo individuality’ capable of extending itself ‘in all regions of the universe’ (in tutte le regioni dell’universo) irrespective of any territorial law,20 he claimed that the individual has certain ‘international rights of man’ (diritti internazionali dell’uomo) ‘towards all the states of the world’ (di fronte a tutti gli Stati del mondo),21 such as the right of emigration and the right of expatriation, which take precedence over the law of their national state. He also recognized the international rights of collectivities, such as churches, corporations and other associations. Finally, he maintained that a violation of the law by one state is an offence not only against the victim of the wrongful act but also against all the other members of the international community, who should thereupon collectively intervene on behalf of law and order.22 Interestingly, Fiore was anything but naïve or purely idealistic. Despite his vision of a universal magna societas, he thought that, given both the absence in fact of a world sovereign and the differences in existing civilizations and legal traditions, international law could not be realistically codified as a whole immediately, but this did and could not preclude the codification of certain parts thereof. Thus, his moderate realism led not to nihilism but rather to constructive work towards improving human coexistence where this had chances to succeed.23

3.2

Dionisio Anzilotti (1867–1950)

Dionisio Anzilotti was born in Pescia (Tuscany) in 1867 and died in Uzzano (Tuscany) in 1950. He taught international law at the universities of Palermo, Bologna and Rome.24 Anzilotti is routinely cited in relation to his legal positivism (i.e. the separation between law and non-law)25 and dualism (i.e. the separation between international law and domestic law).26 He is often associated with the typical ‘Italian’ approach to international law.27 In fact, he followed foreign theories (especially German and 20

Ibid 108. Ibid 41. 22 Ibid 106. 23 Ibid 81. 24 Dionisio Anzilotti, Teoria generale della responsabilità dello stato nel diritto internazionale (1902); Dionisio Anzilotti, Corso di diritto internazionale, I (4th edn Cedam 1955); Dionisio Anzilotti, Scritti di diritto internazionale pubblico, II-1 (1956). 25 Anzilotti, Corso (n 24) 37–48. 26 Ibid 49–63. 27 Denis Alland, Anzilotti et le droit international public (Pedone 2012); Laura Passero, Dionisio Anzilotti e la dottrina internazionalistica tra Otto e Novecento (Giuffrè 2010); Francesco Salerno, ‘L’affermazione del positivismo giuridico nella scuola internazionalista italiana: il ruolo di Anzilotti e Perassi’ 95 RivDirInt (2012) 29–65; Giorgio Gaja, ‘Le prime annate della “Rivista di diritto 21

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Austrian ones) and brought them into the Italian debate. In his view, the foundation of international law is the Kelsenian ‘basic rule’ pacta sunt servanda. However, his positivism did meet certain Italian needs, in particular for legal certainty against opportunism, either of a realist or a moralist kind. During the fascist period, this need was probably crucial for the credibility of law and legal doctrine. In his Corso, Anzilotti talks about ‘the Italian school of the second half of the 19th century’ as an embracement with ‘a new content’ of the ‘old forms of thought’ based on natural law.28 The ‘Italian school’ is again cited later on and is associated with the principle of nationality:29 ‘[t]he principle of nationality, [which is] an expression of an ethical-political ideal and determined by the condition of our country in the historical moment for essentially practical purposes, gave a new content to the old jus naturae, i.e. to the traditional thinking in our science’.30 He noted that the ‘system of the rules that govern the relationships among states’ was about to be reconstructed on the basis of a more rigorous and exact conception, whose stronghold was the ‘clear-cut distinction between the law posited by a legislating will . . . and that ensemble of principles or ideal needs that social consciousness asserts by deducing them from human nature and the constitution of things in relation to the goals of coexistence (justice, or natural law)’.31 They tend to converge, but realistically this convergence has not yet been achieved, and therefore their separation must be retained. Anzilotti appreciated particularly the German and Austrian scholarship of the time for ‘a greater rigorousness of method’ and for the separation between law and non-legal factors.32 In the absence of universal authorities, international legal rules could credibly be thought of, only as supported by the consent of states through treaties and custom, this latter understood as tacit agreement. Without states’ consent, there would have been no realistic chance for rules to be applied. Natural law was equated to ‘nonlegal’ or ‘non-rigorous’ argumentation, and ‘general principles of law’ were seen with scepticism.33 Also, the idea of the ‘codification’ of international law was seen critically. In his view, ‘these projects of codification . . . have a common trait, [which is] that of merging the positive law in force, as it is accepted to a greater or

internazionale” ed il rinnovamento del metodo’ 16 Quaderni Fiorentini (1987) 485–99; Giorgio Gaja, ‘Positivism and Dualism in Dionisio Anzilotti’ 3 EJIL (1992) 123–38; Giorgio Gaja, ‘Dualism—A Review’, in Janne E Nijman and André Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (OUP 2007) 52–62; Jacopo Crivellaro, ‘How did Anzilotti’s Jurisprudential Conception Influence the Jurisprudence of the Permanent Court of International Justice?’ at . 28 Anzilotti, Corso (n 24) 16. 29 Ibid 18. 30 Ibid 19. 31 Ibid 16–18. 32 Ibid 21. 33 Ibid 106–107.

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lesser extent by a specific author, with purely subjective ideas and criteria, in order to fill the numerous gaps, correct the defects, etc. Therein lies the serious risk that they pose as study materials, i.e. that of mixing ideas and criteria of an author up with rules of the law in force.’34

3.3

Rolando Quadri (1907–1976)

Rolando Quadri was born in San Casciano dei Bagni (Tuscany) in 1907 and died in Rome in 1976. He taught international law at the universities of Padua, Urbino, Pisa and Naples.35 Building on political realism and legal sociologism, Quadri defined himself as a realist and proposed an approach based on the ‘vertical’ relationship between states uti universi vis-à-vis states uti singuli. To him, law is made and unmade by the ‘prevailing forces’ of the international community acting uti universi, i.e. by the power of the strongest acting on behalf of the international community as a whole. The will of the strongest is reflected in the ‘principles’ of international law, which are above custom and treaties, and translates into ‘intervention’ by the Great Powers. Quadri wanted to assert that heteronomy is the basic feature of law, against Anzilotti’s explanation based on the ‘consent’ of states (voluntarism). In his view, heteronomy does not necessarily imply an authority above the states. It is sufficient to theorize the distinction between states uti universi and states uti singuli: the latter, i.e. all states each per se, depend on the former, i.e. all states as a whole. Quadri’s underlying assumption was that the law is a product of the strongest who act uti universi. Nonetheless, he also noted that ‘no state in the world, not even the strongest, is legibus solutus’ since any individual state, including the strongest, is subject to the collectivity of states, the ‘social body’ (corpo sociale) that exerts authority.36 According to his critics, such as his pupil Conforti, the fact that the law is made and unmade through the decisive contribution of the strongest does not necessarily mean that the law exists at their caprice and by a pure ‘imposition’ of their will. Under Quadri’s construction, law ends up disappearing behind force.

34

Ibid 78. Rolando Quadri, ‘Le fondement du caractère obligatoire du droit international public’ 80 RdC (1952–I) 579–633; Rolando Quadri, Diritto internazionale pubblico (5th edn Liguori 1968) 25–33, 119–29, 275–8. 36 Quadri, Diritto internazionale pubblico (n 35) 27. 35

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Roberto Ago (1907–1995)

Roberto Ago was born in Vigevano (Lombardy) in 1907 and died in Geneva in 1995. He taught international law at the universities of Catania, Milan and Rome.37 Ago developed a theory of customary international law as ‘spontaneous law’, devoid as such of any formal source and hence ‘nonpositive’. Ago distinguished ‘positive law’ from ‘spontaneous law’, the former being the law posited by a superior authority according to a procedure governed by legal rules, hence indeed grounded in the ‘sources’. In contrast, spontaneous law was a law ‘without sources’ since it was not posited by any authority but, rather, created by its own addressees and ‘living’ (and thus detectable) in their ‘conscience’. Ago’s theory of customary international law as spontaneous law was criticized by Josef Kunz as ‘a typical pseudonatural law construction’.38 In particular, Kunz objected that Ago started from a mistaken definition of positive law that made his whole theory unsound, as well as hardly innovative as presented. According to Kunz, positive law was to be understood as ‘man-made’ law, not as law made by a superior authority. Thus understood, it was to be contrasted to natural law rather than to spontaneous law. From Kunz’s perspective, customary international law was nothing other than ‘positive law’. Ago’s spontaneous law was simply positive (customary) law, and when it failed to reflect such law, it was nothing else than a natural law claim. If there is a lesson to be learnt from Ago’s theory, I suppose, is that of ‘social attunement’. In Ago’s view, customary international law is to be ascertained by ‘attunement’ with the conscience of humankind. Although this is not part of the sources’ theory and spontaneism is more generally questionable,39 I believe that there is something true in Ago’s vision, which reflects as well the Italian practice of law, as it will be described below in the section dealing with zebra crossings in Italy.

3.5

Benedetto Conforti (1930–2016)

Benedetto Conforti was born in Naples in 1930 and died in Naples in 2016. He taught international law at the universities of Siena, Padua, Naples and Rome.40 According to Conforti, international law becomes law in a meaningful sense when it is applied within the domestic legal system, especially by the courts in an

Roberto Ago, Scienza giuridica e diritto internazionale (Giuffrè 1950); Roberto Ago, ‘Positive Law and International Law’ 51 AJIL (1957) 691–733. 38 See Josef L Kunz, ‘Roberto Ago’s Theory of a “Spontaneous” International Law’ 52 AJIL (1958) 90. 39 Carlo Focarelli, International Law a Social Construct: The Struggle for Global Justice (OUP 2012) 264 (footnote 103). 40 Benedetto Conforti, Diritto internazionale (10th edn Editoriale Scientifica 2014); Benedetto Conforti and Angelo Labella, An Introduction to International Law (Nijhoff 2012). 37

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independent way from the executive branch. Conforti praised Jellinek’s theory of self-limitation accordingly. However, whether international law is ‘true law’ in the abstract or before its domestic application was, in Conforti’s opinion, a ‘philosophical issue’ with little or no bearing for jurists. Consequently, he distinguished between ‘political-diplomatic’ and ‘legal’ international law. The former (somewhat similar to Austin’s positive morality) was a sort of non-binding ‘support and background to sound diplomatic relations’, while the latter was (binding) international law proper, as applied in practice by domestic organs.41 In Conforti’s view, states realistically remain central, especially those that observe the rule of law. It is worth noting that, in his view, violations of international law could be justified when deriving from the application of domestic constitutional law,42 a highly contentious stance on which I will (critically) return below. As a pupil of Conforti, I see him as an ‘anti-theorist’ who developed a sort of pragmatism, somewhere in between positivism and naturalism. He was interested not in theories but rather in working and just solutions to actual problems. He pointed to the distilled rationale and inner sense of justice of the rules and to basic human common sense and intuition, avoiding overly sophisticated theoretical structures and details, as well as pure deductive reasoning, behind which sophisms are often hidden. In his view, without good sense, the scientific study of law ends up losing its scientific soundness, and good sense is made of very few basic truths. Excessive analytical thinking as well as excessive ‘specialization’ drift away from the sense of justice and realism that should be seen as inherent in international law as a whole. He contended that jurists are not called upon to philosophize. They have to find the most suitable solution in concreto, given the circumstances. Conforti never specified his methodology of international law for the simple reason, I suppose, that this would amount to (just another unhelpful) theory.

4 Two Key Italian Attitudes to Life and Law If I were to identify the key attitudes of the Italians to life and the law, where the latter is seen as a social creation,43 I would suggest the following: realism and humanism. While typically opposed, they are often felt by the Italians as deeply interlaced. At their worst, they converge on (either realist or humanitarian) opportunism. At their best, they may offer a comprehensive vision of human life that harmoniously combines complexity and simplicity. Of course, such two attitudes greatly vary from the North to the South of Italy and from one individual to another.

41 Conforti, Diritto internazionale (n 40) 8–10; Conforti and Labella, An Introduction to International Law (n 40) 3–5. 42 Conforti, Diritto internazionale (n 40) 400. 43 Focarelli (n 39).

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At the Zebra Crossing in Italy

Let us start by giving a glance at how law is generally perceived by the Italians. In Law and the Media, Lieve Gies notes that in Italy law is being continuously negotiated.44 She does not say that in Italy rules do not exist, nor that they are not observed, but rather that existing rules are constantly negotiated to fit the circumstances. Law ‘lives’, first of all, among people, beyond its formalism, well before being debated in technical terms in courtrooms. It may be useful to illustrate this idea with a practical, ‘living’ example: people at zebra crossings. In Italy there exists, of course, a written legal rule stating that at zebra crossings, pedestrians have the right of way and drivers have to stop.45 Though everyone perfectly knows that there is such a legal rule, in fact, in Italy when a pedestrian is about to cross the street and a driver is approaching, they will usually look at each other and instinctively start a quick and yet sophisticated negotiation on the rule to apply. The pedestrian may resolve that the driver is visibly more in a hurry than them and perhaps has a more pressing reason to go, thereby stopping or simply walking slower and giving way to the driver. The fact that the pedestrian has in the abstract a right to cross plays no significant role. The ‘right’ in these circumstances is being recognized to the driver, whatever the ‘law’ may state. On the same basis, the pedestrian may resolve that they are more in a hurry than the driver and assume that they have the ‘right’ to cross immediately, once again, whatever the ‘law’ may be and regardless of finding themselves on a zebra crossing.46 The driver, in turn, may well recognize this right to the pedestrian regardless of the fact that, according to the ‘law’, they should simply stop. The driver may feel an obligation to stop even when the pedestrian is not crossing at a zebra crossing, although the ‘law’ states that in such a case, in principle, it may be for the pedestrian to give way to a car. These scenarios are absolutely ‘obvious’ to the Italians, but certainly they are not so to other people with other philosophical and legal traditions. For instance, in light of my personal experience, in Germany those who do not cross at a zebra crossing do so at their own risk because drivers will defend their legal right to go, and there is (or there should be) no negotiation at all nor any ‘on the spot’ attempt to legal ‘attunement’ aimed at adjusting the abstract rules to the ‘human’ circumstances of the case. Clearly, here the rule exists a priori and must be complied with as inflexibly as possible since, it is supposed, this is the only way to maintain a social order for the benefit of all, first and foremost of the weakest, who, in negotiations, can be easily 44

Lieve Gies, Law and the Media: The Future of an Uneasy Relationship (Routledge 2008) 4, discussing the ‘mystery of Italian traffic lights’ and citing Beppe Severgnini, An Italian in Italy (Rizzoli 2007) 9–11, translated from La testa degli italiani (Rizzoli 2005) 21–23. 45 ‘Quando il traffico non è regolato da agenti o da semafori, i conducenti devono fermarsi quando i pedoni transitano sugli attraversamenti pedonali. Devono altresì dare la precedenza, rallentando e all’occorrenza fermandosi, ai pedoni che si accingono ad attraversare sui medesimi attraversamenti pedonali’ (Article 191(1) Italian Rules of the Road). 46 ‘I pedoni che si accingono ad attraversare la carreggiata in zona sprovvista di attraversamenti pedonali devono dare la precedenza ai conducenti’ (Article 190(5), Italian Rules of the Road).

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overpowered by the strongest. When Italian pedestrians are about to cross the road in Germany, they will notice that some 15 seconds before actually crossing, or before even thinking about crossing, drivers will have stopped at a distance from the zebra crossing, to allow them all the time to cross the road at ease and safely. Initially, this experience is so ‘anomalous’ to the Italians, that they may be scared by those ‘odd cars’ stopping at a distance for no apparent reason, as if something dangerous is about to happen somewhere nearby. In any event, there is no negotiating room in this scenario either. Unlike in Italy, in Germany pedestrians do not need to strive to ‘obtain’ tacitly their right of passage nor to engage in an amicable and fair negotiation, their right being recognized without effort or necessity to compromise. Here, everything flows smoothly according to the abstract rules. Of course, the ‘law’ that I have just described is not exactly the law upheld in Italian courtrooms, and one might object that the ‘real’ Italian law is the one stated by the courts. This is, however, a particularly narrow view of law. The cases reaching the courts are obviously a small number. Rules work in society for the majority of cases that will never reach the courts. At this level, which of course does not replace the courts’ level, law seems to work in Italy, as described above. Italian jurists study the law in technical terms at universities, but they inevitably ‘combine’ the law ‘in the books’, and even the law ‘stated by the courts’ with the law of every instant of their lives. To a certain extent, it is also reasonable to expect the courts to take account of ‘common sense’ and ‘reasonableness’ in terms of social attunement among people in their daily lives. Once that jurists have so constructed their perception of the law, they would probably project the same view onto their vision of international law, for good or ill. I do not mean that they deliberately transfer their ‘living law’ to international law. I only mean that their consciously technical construction of international law may contain, (more or less) unconsciously, elements of the ‘living law’ that they experience every day.

4.2

Two Key Italian Attitudes

That being said, I would like to point at two key attitudes of the Italians to life and the law: realism and (good sense-oriented) humanism. I will take, on one hand, Niccolò Machiavelli’s Discourses on Livy (1531) and The Prince (1532), Francesco Guicciardini’s Maxims and Reflections (1512–1530) and Giuseppe Tomasi di Lampedusa’s The Leopard (1957) as examples of Italian realism. On the other hand, I will use Alberico Gentili’s The Law of War (1598), Giambattista Vico’s New Science (1725) and Maria Montessori’s The Discovery of the Child (1948) as examples of Italian humanism. Finally, I will illustrate Carlo Levi’s Christ Stopped at Eboli (1945) as an example of the Italian synthesis of realism and humanism. In the following section, I will emphasize some meaningful passages of these works without indulging in their overall description. They are all very well known worldwide.

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Realism

Italian realism can be summarized by the expression ‘All is pointless’ (è tutto inutile), which may also take the form ‘Nothing (really, ever) changes’, which is often used all around Italy, especially by the elderly (with either irony or apparent resignation or amusement or simply for the sake of inertia), even by the selfproclaimed progressives in intimate conversations. The saying, as will be seen, has lots of different meanings. At its core, it assumes that there exists an unchangeable human nature, whatever humans may actually change, or pretend to change, in their individual and social life. For instance, to many Italians, whatever is the latitude and time, ‘power is power’, particularly when considering the human tendency to abuse it. Realism tends to be pessimistic, but pessimism in Italy hardly turns into nihilism. In this section, I will consider a sample of ‘realist’ Italian thinkers. My purpose here is not to discuss them at length, nor to argue in their favour or disfavour. It is only to provide a brief illustration of their attitude, assuming that this can be plausibly found in the average Italian person and in the Italians’ perception of the law. I will focus here on these thinkers’ most significant ‘realist’ (perhaps even crudest) thoughts, although, in my view, the latter are anything but detached from human sympathy, as I will clarify below when sketching a synthesis of Italian realism and humanism.

Machiavelli’s Discourses on Livy (1531) and The Prince (1532) There is no need to introduce such famous Florentine realists as Niccolò Machiavelli and Francesco Guicciardini nor to discuss their political theories. They reacted to the ‘Italian’ political crises of the sixteenth century (actually, Italy was not a unitary state at the time, but many different states existed on what is currently the Italian territory), offering solutions based on power politics, raison d’etat (reason of state) and ‘prudence’. Here, it is worth recalling only some of their thoughts and particularly the way they have been formulated. Let us start by evoking some of Machiavelli’s well-known realist positions, drawing from his Discourses on Livy (1531) and The Prince (1532).47 In essence, he considered ‘more appropriate to follow up the real truth [verità effettuale] of the matter than the imagination of it’48 since ‘how one lives is so far distant from how one ought to live, that he who neglects what is done for what ought to be done, sooner effects his ruin than his preservation; for a man who wishes to act entirely up 47 Niccolò Machiavelli, Discourses on Livy (OUP 1997), available on online at (this is the English translation that as a rule I have preferred in the following quotations in the text, with few exceptions); Niccolò Machiavelli, The Prince (Penguin Books 2009), available online at several websites. For the Italian original text see Niccolò Machiavelli, Discorsi sopra la prima Deca di Tito Livio (Rizzoli 1984); Niccolò Machiavelli, Il principe (Einaudi 2014). 48 Machiavelli, The prince (n 47) ch 15.

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to his professions of virtue soon meets with what destroys him among so much that is evil’.49 Machiavelli had a deep feeling that things in the world are astonishingly variable precisely because, at the same time, human nature exhibits a constant feature: human desires are so unappeasable that humans remain constantly dissatisfied and in search of satisfaction. He noted that ‘human appetites being insatiable (because by nature they have to be able to and want to desire everything, and to be able to effect little for themselves because of fortune), there arises a continuous discontent in the human mind, and a weariness of the things they possess; which makes them find fault with the present times, praise the past, and desire the future, although in doing this they are not moved by any reasonable cause’.50 This endless race to satisfaction, in which desires generate other desires as soon as the former are satisfied, makes human life a constant struggle. In fact, ‘men afflict themselves in evil and weary themselves in the good, and . . . the same effects result from both of these passions’ in such a way that ‘whenever men are not obliged to fight from necessity, they fight from ambition; which is so powerful in human breasts, that it never leaves them no matter to what rank they rise . . . as men desire, some to have more, some in fear of losing their acquisition, there ensues enmity and war’.51 This struggle, steered by illusions, leads easily to tyranny. In fact, ‘nearly all men deceived by a false good or a false glory allow themselves to drift either voluntarily or ignorantly into the ranks of those who merit more censure that praise’ and ‘being able to establish either a Kingdom or a Republic with eternal honor to themselves, they turn to Tyranny, nor do they see because of this action how much fame, how much glory, how much honor, security, and tranquil satisfaction of the mind, they lose; and how much infamy, disgrace, censure, danger, and disquiet, they incur’.52 People believe in illusions that promise to satisfy their needs, and political leaders govern them by way of illusions. As Machiavelli observed, ‘men more quickly forget the death of their father than the loss of their patrimony . . . [t]he crowd [il vulgo] is always taken by what a thing seems to be and by what comes of it; and the world is all crowd [e nel mondo non è se non vulgo], for the few find a place there only when the many have no ground to rest on’.53 Machiavelli is straightforward about human nature in these circumstances: ‘this is to be asserted in general of men, that they are ungrateful, fickle, false, cowardly, covetous, and as long as you succeed they are yours entirely; they will offer you their blood, property, life and children . . . when the need is far distant; but when it approaches they turn against you’.54 Few basic human attitudes seem to recur in a kaleidoscope of apparently different forms. Rulers are part of the picture. They too

49

ibid. Machiavelli, Discourses (n 47) Book II, Preface. 51 ibid Book I, ch 37. 52 ibid Book I, ch 10. 53 Machiavelli, The Prince (n 47) chs 17 and 18. 54 ibid ch 17. 50

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pursue desires that can never be definitively satisfied. They are thus called to ‘govern’ the similarly structured desires of the ruled, and this is possible only by assuming that their subjects are bad much more than good: ‘as every history is full of examples, it is necessary to whoever arranges to found a Republic and establish laws in it, to presuppose that all men are bad and that they will use their malignity of mind every time they have the opportunity; and if such malignity is hidden for a time, it proceeds from the unknown reason that would not be known because the experience of the contrary had not been seen, but time, which is said to be the father of every truth, will cause it to be discovered’.55 It is then necessary ‘for a prince to understand how to avail himself of the beast and the man’.56 A prince ‘cannot observe all those things for which men are esteemed, being often forced, in order to maintain the state, to act contrary to faith, friendship, humanity, and religion’.57 He needs to have ‘a mind ready to turn itself accordingly as the winds and variations of fortune force it, yet . . . not to diverge from the good if he can avoid doing so, but, if compelled, then to know how to set about it’.58 In fact, ‘he who has known best how to employ the fox has succeeded best . . . men are so simple, and so subject to present necessities, that he who seeks to deceive will always find someone who will allow himself to be deceived’.59 One may wonder whether this ‘realist’ stance is against brotherhood, sense of humanity, democracy, as it has often been stereotypically depicted. Although it would be instinctive to think so, Machiavelli is far from defending egoism, cynicism, and tyranny. His thoughts are inspired, on the contrary, by the basic urge of humans to find out a way to survive while living together and by the conviction that this is only possible in part and by acknowledging humans ‘as they are’; however, we would ideally like them to be, i.e. by putting aside dreams or abstract theories and grasping through personal experience their verità effettuale.

Guicciardini’s Maxims and Reflections (1512–1530) Francesco Guicciardini was apparently more benevolent to humans than was Machiavelli, given his belief in the inherent goodness of human nature. In fact, his views can be regarded as more revealing of Italian realism than Machiavelli’s, especially when he considers that ‘discrezione’ may mean opportunism in practice and when he focuses on the ‘particulare’ and denies that any general theory could be an instrument really capable of helping humans. In the present context, it is worthwhile to consider his Ricordi (literally ‘Memories’, often translated into English as Maxims and Reflections), written in the period 1512–1530 and published twice (with

55

Machiavelli, Discourses (n 47) Book I, ch 3. Machiavelli, The Prince (n 47) ch 18. 57 ibid. 58 ibid. 59 ibid. 56

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variations) in 1528 and in 1530, since they contain in relatively few short sentences the essence of Guicciardini’s thinking.60 In Guicciardini’s view, humans are generally good; they ‘naturally incline’ towards good more than evil. As he emphasized, ‘[i]f there is someone naturally more inclined toward evil than good, you may surely say that he is not a man but a beast or a monster, for he is lacking in that inclination which is natural to all men’.61 However, their ‘nature’ leads them, more often than not, to pursue their own selfinterest. Although ‘[a]ll men are by nature inclined towards good rather than evil . . . human nature is so fragile, and temptations are so many, that men let themselves be easily deviated from the good’62 under the effect of ‘vain cupidity’. In his view, ‘Man’s greatest enemy is himself, for nearly all of the many evils, dangers, and worries he has to bear have their origin in his excessive cupidity’.63 Human beings continuously deceive themselves, in particular ‘[t]he sins they do not commit they consider ugly; the ones they do commit are venial’, and ‘[g]ood and evil is often measured by that standard, rather than by considering the nature and the quality of our action’.64 Guicciardini confessed the same truth about himself (‘Like all men, I have pursued honor and profit. And often, I got more than I had wished or hoped. But I never found in them the satisfaction I had anticipated. A powerful reason, if it be well considered, for men to lesser their vain cupidity’).65 As a result, ‘men are so false, so insidious, so deceitful and cunning in their wiles, so avid in their own interest, and so oblivious to other’s interests, that you cannot go wrong if you believe little and trust less’.66 Their nature ‘is such that they always want more than they have . . . The more you give them to drink the thirstier they get’.67 Socially speaking, human wickedness calls for severity in the way humans are ruled, although the ruler ‘must do everything possible to have people believe that you dislike cruelty and that you use it only out of necessity and for the public welfare’.68 To speak of the people is to speak of a ‘mad animal gorged with a thousand and one errors and confusions, devoid of taste, of pleasure, of stability’.69 As for that kind of people who enjoys liberty, Guicciardini noted that ‘the more they want to use it, the less will they enjoy it, and the sooner will they fall under a

60 Francesco Guicciardini, Maxims and Reflections (Ricordi) (University of Pennsylvania Press 1965); for the Italian original text see Ricordi, available online at . In the following quotations I will refer to the versions indicated in the above-mentioned English translation as ‘B’ (of 1528) and ‘C’ (of 1530). 61 ibid Series C, No 135 at 75. 62 ibid, No 134 at 75. 63 ibid, Series B, No 139 at 129. 64 ibid, Series C, No 122 at 72. 65 ibid No 15 at 44. 66 ibid No 157 at 81. 67 ibid Series B, No. 113, at 123. 68 ibid No 85, at 116–117. 69 ibid Series C, No. 140, at 76.

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tyranny’.70 He also remarked that ‘every state . . . is violent’; there is no legitimate power ‘except that of republics within their own territories but not beyond’, and even ‘the power of the emperor is [no] exception, for it is founded on the authority of the Romans, which was a greater usurpation than any other’. Nor does Guicciardini excepts ‘priests from this rule—indeed, their violence is double, for they use both the temporal and the spiritual arms to subjugate us’.71 Human affairs, just like human beings,72 are so variable that any theory aimed at predicting the future is inherently inadequate. What counts is the consideration of nature and experience, i.e. ‘discretion’ applied to particular circumstances. ‘Fortune has great power over human affairs’, these being constantly ‘affected by fortuitous circumstances that men could neither foresee nor avoid’, and ‘[a]lthough cleverness and care may accomplish many things, they are nevertheless not enough’.73 For Guicciardini, ‘[n]ot right, but prudence, strength, and good fortune bring victory’, and ‘[i]t is a mistake to think that the victory of a cause depends upon its justice, for we see the contrary every day’, although it is ‘very true that right gives birth to a certain confidence, founded in the belief that God gives victory to the just cause; and that belief makes men ardent and obstinate, which qualities sometimes bring victory’. Thus, ‘having a just cause may be indirectly useful, but it is wrong to believe it can be of direct use’.74 In these circumstances, it is always preferable to find themselves sided with the winner.75 According to Guicciardini, it is also a mistake ‘to speak of the things of this world absolutely and indiscriminately and to deal with them, as it were, by the book’; actually, ‘[i]n nearly all things one must make distinctions and exceptions because of differences in their circumstances’, which ‘are not covered by one and the same rule’, nor ‘can these distinctions and exceptions be found written in books’ but ‘must be taught by discretion’.76 Even his Ricordi ‘should not be followed indiscriminately’ since ‘[i]n some particular case that presents different circumstances, they are of no use’.77 Theory is one thing and practice another, and many understand the former without being able to put it into operation, producing knowledge that is useless, ‘like having a treasure stored in a chest without ever being able to take it out’.78 Philosophers and theologians have 70

ibid No 188 at 88–9. ibid Series B, No 95, at 119. 72 ibid Series C, No 61, at 57 (‘Men have different temperaments. Some are so full of hope that they count as certain what they do not yet have; others are so fearful that they do not count on anything not yet in their hands. I am closer to the second than the first. And men on my temperament will be less often deceived but will live with greater torment’). 73 ibid No 30 at 49. 74 ibid No 147 at 78. 75 ibid No 176 at 85 (‘Pray to God that you are always on the winning side, for you will get credit even for things in which you had no part. If, on the contrary, you are a loser, you will be blamed for an infinite number of things of which you are entirely innocent’). 76 ibid No 6 at 42. 77 ibid Series B, No 121, at 125. 78 ibid Series C, No 35, at 51. 71

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stated a great number of follies.79 Proverbs are important to understand life since they contain universal and long-tested truths.80 Nonetheless, to make a decision, albeit very difficult, is necessary and implies a balancing process since truth is on both sides. For Guicciardini, ‘[i]n all human decisions and actions there is always reason for doing the opposite of what we do, for nothing is so perfect that it does not contain a defect’ and ‘[n]othing is so evil that it does not contain some good, just as nothing is so good that it does not contain some evil’. This causes most ‘overconscientious’ people to remain inactive, awed by every minute detail, but ‘[t]hat is no way to be’. Rather, ‘having weighed the disadvantages of each side, we should decide for the one that weighs less, remembering that no choice is clear and perfect in every respect’.81 In essence, in Guicciardini’s perception, despite changes, the world remains basically unchanged, and what happened in the past will reoccur in the future, although under different names and forms.82 It is ‘[p]ast events [that] shed light on the future’ since ‘the world has always been the same, and everything that is and will be, once was; and the same things recur, but with different names and colors’, this being the reason why ‘not everyone recognizes them—only those who are wise, and observe and consider them diligently’.83 Guicciardini, just as Machiavelli, praised concerns for the ‘real truth’ rather than dreams, ethical preferences, ideal theories and illusions. Analysis is meant to identify actual reality, and the ‘real’ are basically the underlying ‘invariables’ in human affairs rather than apparent novelties.

Tomasi di Lampedusa’s The Leopard (1957) The most memorable line in Tomasi di Lampedusa’s novel The Leopard (1957) is voiced by Prince Fabrizio Corbera’s nephew, Tancredi, while urging the Prince, in 1860, to abandon his allegiance to the disintegrating Kingdom of the Two Sicilies and to ally himself with the House of Savoy (heading the upcoming unitary Italian

79 ibid No 125 at 72-73 (‘Philosophers and theologians, and all those who investigate the supernatural and the invisible, say thousands of insane things. As a matter of fact, men are in the dark about such matters, and their investigation has served and serves more to exercise the intellect than to find truth’). 80 ibid No 12 at 43–4 (‘In every nation, we find nearly all the same or similar proverbs, expressed in different words. The reason is that these proverbs are born of experience, or observation of things; and that is the same, or at least similar, everywhere’). 81 ibid No 213 at 96. 82 ibid No. 76 at 60–1 (‘Everything that has been in the past and is in the present will be in the future. But the names and appearances of things change, so that he who has not a discerning eye will not recognize them. Nor will he know what line to take or what judgment to form’). 83 ibid Series B, No 114, at 123.

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state): ‘If we want things to stay as they are, things will have to change’,84 immediately preceded by ‘[u]nless we ourselves take a hand now, they’ll foist a republic on us’. The above famous sentence has been generally understood in terms of social immobility, conservatism, if not reactionary attitude.85 However, the sentence has many different meanings that are all implied in the novel (where it recurs in different contexts and is pronounced by different characters), as well as, I believe, in most Italian minds. Much depends on the meaning to be attached to what has either to ‘change’ or to ‘stay’ as it is: political regime, human nature, external attitudes, inner comprehension and so forth. Clearly, some of these elements do change, whereas others do not and perhaps cannot change, hence the deep ambiguity of the sentence, which is possible, inter alia, thanks to the typically ‘poetic’ structure of the Italian language. In any event, the phrase embraces an acutely ‘realist’ vision of human affairs and human nature, reminiscent of Machiavelli and Guicciardini’s realism, as well as that of many other Italian thinkers. Firstly, the sentence may mean ‘nothing really changes’; i.e., the substance of change is illusory: anywhere and anytime, those in power simply fear to lose power, and those under their power want to take their place. Nothing more, nothing less. Ruling classes may change, but their basic urge to rule rather than being ruled remains unchanged. With this meaning, the expression claims to convey a truth of fact, without necessary normative implications. Father Pirrone, the Jesuit chaplain of the Corbera family, says to Don Pietrino, the old herbalist: ‘if, as has often happened before, this class [the nobles] were to vanish, an equivalent one would be formed straight away with the same qualities and the same defects; it might not be based on blood any more, but possibly on . . . on, say, length of time in a place, or pretended knowledge of some text presumed sacred’.86 More pessimistically, the Prince reformulates this thought by saying to his steward Pietro Russo: ‘You just want to take our places . . . For all will be the same, just as it is now: except for an imperceptible change round of classes.’87 Later, describing the Prince’s thoughts after refusing the offer to join the new Italian Senate put forward by Chevalley, a delegate of the House of Savoy, Tomasi di Lampedusa, writes: ‘Chevalley thought: “This state of things [Sicilian immobility] won’t last; our lively new modern administration will change it all”. The Prince was depressed. “All this shouldn’t last; but it will, always; the human “always” of course, a century, two centuries . . . and after that it will be different, but worse. We were the Leopards and Lions: those 84 The phrase is found in a number of passages of the book in slightly different forms, see Giuseppe Tomasi di Lampedusa, The Leopard (Vintage Books 2007) 19–20, 26, 153; for the Italian original text see Il Gattopardo (Loescher 2008) 53–4, 60, 183. 85 Albert O Hirshman, The Rhetoric of Reaction: Perversity, Futility, Jeopardy (The Belknap Press of Harvard University Press 1991) 44, 58, 77, cites Tomasi di Lampedusa among the Italians whose ‘contribution . . . to the futility thesis [meaning ‘change is illusory’, one of his three ‘reactionary’ theses, the other two being the ‘perversity’ and “‘jeopardy’ theses] is preeminent”. 86 Tomasi di Lampedusa, The Leopard (n 84) 152–3. 87 ibid 25.

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who’ll take our place will be little jackals, hyenas; and the whole lot of us, Leopards, jackals and sheep, we’ll go on thinking ourselves the salt of the earth.”’88 Sicilians in particular, according to Prince Fabrizio in the novel, will stay the same despite any change in the ruling classes. The Prince tells Chevalley that ‘the Sicilians never want to improve for the simple reason that they think themselves perfect; their vanity is stronger than their misery; every invasion by outsiders, whether so by origin or, if Sicilian, by independence of spirit, upsets their illusion of achieved perfection, risks disturbing their satisfying waiting for nothing’.89 In the Prince’s view, Sicilians, and one may extend the argument mutatis mutandis to Italians in general, have remained impermeable to centuries of foreign rulers: ‘From over twenty-five centuries we’ve been bearing the weight of superb and heterogeneous civilisations, all from outside, none made by ourselves, none that we could call our own . . . all those rulers who landed by main force from all directions, who were at once obeyed, soon detested and always misunderstood . . . have formed our character.’90 Secondly, the sentence may mean ‘nothing must change’, representing conservatism to the fullest. Nowhere in the novel can one capture this meaning. The Prince aligns himself with the ‘new rulers’ by voting for the annexation of Sicily to the House of Savoy, while Tancredi had immediately fought on the side of the latter. In the novel, ‘history goes on’ and nobody can apparently stop it. Trying to do so would be tantamount to maintaining a dead person alive, as it was done with the dog Bendicò, which, after having been ‘embalmed for forty-five years’, at the end of the novel is finally thrown away.91 In a letter of 30 May 1957 to a friend, Tomasi noted that ‘the dog Bendicò is a vitally important character and practically the key to the novel’.92 At the same time, history ‘happens’ on the battleground; it is not the outcome of an active or constructive participation. There is little confidence in history. Whatever happens, one has to decide what to do next in the flowing events. Thirdly, the sentence may mean that everything changes and people are bound to adjust to the circumstances so that they can keep on living. This may be a form of progressivism. The novel seems to denounce Sicilians’ unwillingness to ‘improve’ (migliorare) themselves.93 In this sense, the Prince says to Father Pirrone: ‘we’re just human beings. We live in a changing reality to which we try to adapt ourselves like seaweed bending under the pressure of water.’94 The Prince acknowledges that an unstoppable change is under way. He votes in favour of the novel Italian state, despite not believing in it, and sees death as the only real change with which all have to align.

88

ibid 143. ibid 141. 90 ibid 136, 138. 91 ibid 202, 212. 92 ibid xii. 93 ibid 141. 94 ibid 29. 89

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Fourthly, the sentence may mean that the whole of human life is a complete illusion, whoever loses or gains. For the Prince, the ‘glorious’ Italian Risorgimento appears as a ‘play’ (una commedia), illusory as a theatre and unfolding in accordance with a script that only ends with ‘an imperceptible change round of classes’. Reflecting on Tancredi’s maxim ‘in order for all to remain as it is’, the Prince considers the formation of Italy as follows: ‘Much would happen, but all would be play-acting; a noisy, romantic play with a few spots of blood on the comic costumes. This was a country of arrangements. . . .’95 The illusion of life is apparent in the way in which the love between the young and handsome Tancredi and Angelica is contrasted with future suffering and death: ‘Tancredi and Angelica . . . were the most moving sight there, two young people in love dancing together, blind to each other’s defects, deaf to the warnings of fate, deluding themselves that the whole course of their lives would be as smooth as the ballroom floor, unknowing actors set to play the parts of Juliet and Romeo by a director who had concealed the fact that tomb and poison were already in the script. Neither was good, self-interested, turgid with secret aims; yet there was something sweet and touching about them both; those murky but ingenuous ambitions of theirs were obliterated by the words of jesting tenderness he was murmuring in her ear, by the scent of her hair, by the mutual clasp of those bodies destined to die.’96 The reader learns in the final chapter that Angelica, ‘now nearly seventy’, ‘a widow from the last three years’ whose ‘illness . . . was to transform her into a wretched spectre three years later’, had spent forty ‘tempestuous and interrupted’ years with Tancredi.97 Human beings are masks in life and die with that mask: ‘we all die with a mask on our features; even the young’.98 The Prince tells Chevalley: ‘I am without illusions: what would the Senate do with me, an inexperienced legislator, who lacks the faculty of self-deception, essential requisite for anyone wanting to guide others? . . . Now you need young men, bright young men, with mind asking “how” rather than “why”, and who are good at masking, at blending I should say, their obvious personal interests with vague public ideals.”99 At the end of the conversation, he adds: ‘It’s late, Chevalley, we must go and dress for dinner. For few hours I have to act the part of a civilised man.”100 Fifthly, the sentence may mean that ‘death remains unchangeable’, that whatever may change in the rest, all that is done in life will dissolve into death. Death is the only real authority capable of levelling out everything and everyone. Referring to the Prince, Tomasi di Lampedusa remarked: ‘As always the thought of his own death claimed him as much as that of others disturbed him: was it perhaps because, when all was said and done, his own death would in the first place mean that of the whole

95

ibid 25. ibid 172. 97 ibid 203–4. 98 ibid 187. 99 ibid 139. 100 ibid 142. 96

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world?’101 According to the Prince, Sicilians’ ‘sensuality is a hankering for oblivion, our shooting and knifing a hankering for death; our languor, our exotic ices, a hankering for voluptuous immobility, that is for death again; our meditative air is that of a void wanting to scrutinise the enigmas of Nirvana . . . novelties attract us only when they are dead’.102 Sixthly, the sentence may mean that ‘no change will really occur if you want an immediate radical change’. This interpretation is in favour of gradual reformism to change things in reality. In the end, this is the actual course of the events in the novel. Things do change (with the contribution of the Prince himself and the participation of the homini novi, such as Tancredi and Sedàra) without major social shocks. Finally, the sentence may mean that ‘a change is indeed necessary, but it cannot come from outside’. There must occur an inner change for everything really to change. Without such inner change, no change will occur but a mere ‘change round of classes’: the new strongest will take over and the weak will remain subdued.

4.2.2

Humanism and Common Sense

There is a long tradition in the Italian cultural background that views human nature (and hence humanitarianism) in terms of ‘common sense’ or ‘social attunement’, and which includes human nature as the ultimate foundation of law. Before presenting three classical Italian writers who have placed common sense at the core of their thought, some introductory remarks are useful to illustrate the concept and linguistic uses of ‘common sense’. In the Western philosophical and legal tradition, the term ‘common sense’ appears in Aristotle’s De anima and De somno (koiné aisthesis in Ancient Greek), meaning common perception, i.e. what is common to the human senses (beyond their peculiarities) and what allows individuals to be conscious of sensation (namely the ‘feeling to feel’).103 Aristotle’s koiné aisthesis is a sensory, embodied (pre-reflexive) act comparable to touch,104 not a noetic (reflexive) act.105 Koiné aesthesis is, firstly, the common root of the outer senses that allows the integration of different modalities of specific senses (seeing, hearing, etc.) and the direct perception of ‘common sensibles’ (movement, rest, shape, number, unity) without any ad hoc sense organ, hence perceptual unity.106 Secondly, it is the consciousness of the sensation itself, which cannot reside in any specific sense organ, hence self-

101

ibid 14. ibid 137. 103 Aristotle, De somno et vigilia, 2, 455a 13; Aristotle, De anima, III, 1, 425a 14 ff. 104 Aristotle, De somno et vigilia (n 103) 455a 22–4. 105 Charles H Kahn, ‘Sensation and Consciousness in Aristotle’s Psychology’ 48 AGPh (1966) 43–81; Charles H Kahn, ‘Aristotle on Thinking’ in Martha C Nussbaum and Amelie Oksenberg Rorty (eds), Essays on Aristotle’s De Anima (Clarendon Press 1992) 359–80. 106 Aristotle, De anima (n 103) III, 1, 425a 14. 102

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consciousness, i.e. ‘the common power accompanying all the senses, by which we perceive that we are seeing and hearing’.107 This naturalistic meaning was taken up by the Stoic Stobaeus in his Eclogues (koiné ennoia)108 and by Aristotelian theologians such as Avicenna109 and Thomas Aquinas110 in the Middle Ages. Besides this Greek strand of thinking, there is a (partially Stoic-oriented) Latin tradition that links common sense (sensus communis) to habit, taste, common lifestyle, shared fashion of talking, hence self-evident, commonly shared truths or knowledge that connects individuals to society. Cicero held that it was a major defect for an orator ‘to abhor from the vulgar form of the discourse and from the custom of common sense’.111 Seneca’s philosophy was explicitly driven by the development of sensus communis.112 In the Latin tradition, Aristotle’s sensory explanation evolved into a humanistic outlook with a strong social and political connotation.113 A linguistic caveat is also useful. In the Italian language, good sense (buon senso) and common sense (senso comune) have a somewhat different meaning, and the difference may amount to sharp opposition in certain contexts.114 The best illustration is a splendid sentence found in Alessandro Manzoni’s I promessi sposi: ‘il buon senso c’era; ma se ne stava nascosto, per paura del senso commune’.115 With this expression, Manzoni noted that at the time of the plague in 1630 in Milan, ‘[g]ood sense [buon senso] still existed; but it was kept concealed, for fear of the common sense [senso comune]’. In Manzoni’s view, people of good sense were the few who had acknowledged the plague and suggested appropriate remedies, whereas the masses (and politicians in the first place), following common sense, overwhelmingly tended to minimize, if not to deny, the plague. As a consequence, the latter was in fact exacerbated rather than mitigated. The expression adumbrates that, here, good sense means some personal, balanced, tactful, ‘sound understanding’, attuned with the most elementary demands of humanity, while common sense is the (presumably false, manipulative or manipulated) sense shared by the community. The Englishspeaking world tends, on the contrary, to praise common sense rather than to view it with suspicion, evidently out of the reasonable belief that personal idiosyncrasies are

107

ibid 425b, 427a; Aristotle, De Somno (n 103) 455a 13, 15. Stobaeus, Physical and Moral Extracts (‘Eclogues’), I, 50. 109 Avicenna, Liber de anima seu sextus de naturalibus (Simone van Riet, 1972) III, 30. 110 Thomas Aquinas, Summa Theologiae, I, q 78, a 4, ad 1; and I, q 1, a 3, ad 2. 111 Cicero, De oratore, I, 3, 12; II, 16, 68; II, 9, 36. 112 Seneca, Epistulae morales ad Lucilium, 5, 4 (‘hoc primum philosophia promittit, sensum commune, humanitatem et congregationem’). 113 For the view that ‘Aristotle’s koiné aisthesis expresses both embodiment and attunement to the social world, self-consciousness and other-consciousness, today visible in the light of developmental psychology and neurobiology, see Giovanni Stanghellini, Disembodied Spirits and Deanimated Bodies: The Psychopathology of Common Sense (OUP 2004) 121. 114 For a philosophical analysis of good sense, see Eric Weil and James G Labadie, ‘Good Sense or Philosophy’ 3 Diogenes (1955) 29–49. 115 Alessandro Manzoni, I promessi sposi [1840–1842] (Newton Compton 2004) 489; in English The Betrothed (Penguin Books 1972) 603. 108

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more frequent and dangerous than those that are shared in society. In German, two expressions are found (gemeiner Verstand and gesunder Menschenverstand), whose relationship is complex in Kant’s thought.116 Common sense and good sense are synonyms also in Thomas Reid’s thinking.117 In the French language, Henry

116

In the Prolegomena to Any Future Metaphysics (1783) Kant argued that metaphysics as a science of pure reason is confined to speculative understanding and does not extend to ‘gemeiner Verstand’ or ‘gemeiner Menschenverstand’ (literally ‘common understanding’ or ‘common human understanding’) and ‘gesunder Verstand’ (literally ‘healthy understanding’ (Immanuel Kant, Prolegomena zu einer jeden künftigen Metaphysik, die als Wissenschaft wird auftreten können [1783] (Meiner 1957) 6, 27, 138–9, 141, English translation Prolegomena to Any Future Metaphysics (Forgotten Books 2008) 5–6, 25, 128–9, 131, also available at ). He thought that gemeiner Verstand was ‘only of use so far as it can see its rules (though they actually are a priori) confirmed by experience’, but ‘to comprehend them a priori, or independently of experience, belongs to the speculative understanding, and lies quite beyond the horizon of common sense [liegt ganz außer dem Gesichtskreise des gemeinen Verstandes]’. To his mind, gemeiner Menschenverstand was to be ‘shown practically, by well-considered and reasonable thoughts and words, not by appealing to it as an oracle, when no rational justification can be advanced’. He regarded the appeal to common sense (die Berufung auf den gemeinen Menschenverstand) as ‘an appeal to the opinion of the multitude [eine Berufung auf das Urteil der Menge], of whose applause the philosopher is ashamed, while the popular charlatan glories and confides in it’, a witness ‘whose authority depends merely upon rumor [dessen Ansehen nur auf dem öffentlichen Gerüchte beruht]’, an accommodation ‘to personal peculiarities [nach persönlichen Eigenschaften]’, nothing but ‘normal good sense, so far it judges right [der gemeine Verstand, sofern er richtig urteilt]’, which in turn ‘is the faculty of the knowledge and use of rules in concreto, as distinguished from the speculative understanding, which is a faculty of knowing rules in abstracto’, and, finally, something to which appeal should never be made except for ‘when we are forced to . . . renounce all purely speculative cognition [Metaphysik, als einer spekulativen Wissenschaft der reinen Vernunft]’. A few years later, in The Critique of Judgment (1790), Kant defined ‘gesunder Verstand’ as what makes a judgment of taste possible. In his view, ‘[t]his differs essentially from common understanding [vom gemeinen Verstande], which is also sometimes called common sense [Gemeinsinn] (sensus communis)’ in so far as ‘the judgement of the latter is not one by feeling, but always one by concepts, though usually only in the shape of obscurely represented principles’ (Immanuel Kant, Kritik der Urteilskraft [1790] (Meiner 1959) para 20, at 79–80, English translation The Critique of Judgement (OUP 2007) 68–69. 117 In the 18th century, the ‘Scottish School’ of philosophy elevated the concept of common sense to the ultimate criterion of judgment and the basic principle to solve any philosophical doubt against metaphysics and the inevitable scepticism deriving therefrom. In his An Inquiry into the Human Mind, Thomas Reid referred ‘common sense’ and ‘good sense’ to the traditional beliefs of humankind. In his view, ‘several original forces for belief . . . serve to direct us in the everyday affairs of life, where our reasoning faculty would leave us in the dark. They are a part of our constitution, and all the discoveries of our reason are based on them. They make up what is called ‘the common sense of mankind’; and what is plainly contrary to any of them is what we call ‘absurd’. Their strength is ‘good sense’, which is often found in people who are not highly intelligent. A remarkable deviation from them, arising from a disorder in the person’s constitution, is what we call ‘lunacy’”. He thus called for ‘[a] clear listing and explanation of the principles of common sense’ as ‘one of the chief things that logic should provide’ (Thomas Reid, An Inquiry into the Human Mind [1794] (Edinburgh University Press 2010), ch 7, Conclusion, para 4.

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Bergson significantly used the term ‘bon sens’ to mean something that overlaps both common sense and good sense.118

Gentili’s Natural Law as Elementary Wisdom It is worth reviewing, in the present context, the thought of Alberico Gentili,119 one of the most prominent ‘founders’ of international law at the beginning of the modern age in Europe, and particularly what he meant by jus naturae, to which he equated jus gentium (i.e. international law).120 In Gentili’s days, natural law mostly consisted of a series of precepts logically deduced from general categories, ultimately from the notion of ‘human nature’ (or even, more broadly, of ‘the nature of things’). The discourse on natural law mostly consisted of abstract reasoning, theoretical notions and corresponding distinctions and sub-distinctions. A perfect example of this argumentative style is given by Suárez’s reflections on the autonomy of the concept of jus gentium, with regard to both jus naturae and jus civile.121 This philosophical-theological method was not at all appealing to Gentili.122 It is from precedents and authorities, alongside selfevidence, that he draws the rules of jus naturae and jus gentium. In his line of reasoning, induction is necessary but not sufficient: reason is also necessary and may be primarily drawn from what the wisest men have historically regarded as true. Gentili is a jurist, and as a jurist he sees realities from a practical standpoint. He is interested in the single individual rules that ensure in practice life in common of their addressees, forming a sufficiently coherent system, rather than in metaphysical or logical questions, including conceptual and definitional ones, related to jus gentium,

118

A rediscovery of the communitarian connotation of common sense is owed, at the end of the 19th century, to Henry Bergson, who invoked ‘good sense’ in his Ecrits et paroles (1895). He stressed that ‘le bon sens préside à nos relations avec les personnes’, as ‘un sens délicat, une vision ou plutôt un tact de la vérité pratique’, thanks to its ‘sens social”. In his eyes, “le bons sens consiste en partie dans une disposition active de l’intelligence, mais en partie aussi dans une certaine défiance toute particulière de l’intelligence vis-à-vis d’elle-même’ (see Henry Bergson, Ecrits et paroles [1895] (Paris: PUF, 1957) I, 84, 84–85, 88–89. 119 As an Italian jurist who served as the Regius professor of civil law at the University of Oxford from 1587 Gentili is also considered by Sir Michael Wood in Chapter 5 of this book. 120 For a recent comprehensive analysis, see Carlo Focarelli, ‘Jus Gentium in Alberico Gentili: A Call for Prudence and the Common Sense of Humanity’ 100 RivDirInt (2017) 329–55. 121 See Carlo Focarelli, ‘Customary Foundations of jus gentium in Francisco Suárez’s Thought and the Concept of International Community in Contemporary International Law’ 16 ItYBIL (2006) 45–49. 122 On Gentili’s legal method, see recently Alain Wijffels, ‘Antiqui et Recentiores: Alberico Gentili—Beyond Mos Italicus and Legal Humanism’, in Paul J du Plessis and John W Cairns (eds), Reassessing Legal Humanism and its Claims. Petere Fontes? (Edinburgh University Press 2016) 11–40.

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jus naturae and so forth.123 His focus is on rules as direct expressions of some common ground that is identifiable, as noted, through precedents, authorities and self-evidence. On occasion, Gentili has been charged with a certain lack of conceptual precision (if not with a certain opportunism),124 perhaps overlooking the fact that he might have deliberately refrained from defining concepts too accurately. This point is linked to Gentili’s assertion of a strictly legal method. Methodological autonomy, usually associated with the famous sentence ‘Silete theologi in munere alieno’,125 seems to imply that, in his thought, general definitions—like those that are theological-dogmatic or philosophical-aprioristic in character—are of little use and do not solve legal problems, which are always concrete. In being mindful of the endless general positions that can be adopted in the abstract, typical of his age and particularly inherent in relationships between ‘equals’ (i.e. states), Gentili found in specific legal rules a common ground even in a conflict, whereas general ways of addressing questions were precisely felt as susceptible of deepening differences. Paradoxically, by creating a general category and increasing the level of abstraction, one may end up nourishing conflict and widening differences. Conversely, when the focus is on specific points, without any claim to a whole and aprioristic truth, some convergence may surface, and people may find themselves united by certain common interests and rules, in spite of any conflict. It is possible, for example, to diverge on the abstract notion—i.e. on the ‘concept’—of jus gentium or on particular abstract rules drawn therefrom, while the interests of belligerents may well converge, for various reasons, on the specific point that women and children should be spared during an armed conflict.126 It becomes then of the utmost importance to understand what features the rules of jus belli—and indirectly of jus gentium—are supposed to present in order for them to work reasonably in practice. Indeed, a comprehensive reading of Gentili’s writings reveals that he was more interested in individual rules than in the ‘concept’ of jus gentium, to the extent that rules are supported by a number of features concretely ensuring their operational functionality, namely reciprocity and impartiality,127

123

See Alberico Gentili, De iure belli libri tres (Clarendon Press, 1933) (original text and English translation of the edition of 1612), Book III, ch 2, 484; and ch 13, 579. Although I will quote, hereinafter, the English translation of Gentili’s work with some occasional refinements, the page numbers reported in the footnotes are those of the original Latin version. 124 See for example Antonio Truyol y Serra, Histoire du droit international public (Economica 1995) 56. 125 Gentili, De jure belli (n 123) Book I, ch 12, 92 (‘Let the theologians keep silence about a matter which is outside of their province’). For the persuasive view that the phrase Silete theologi has been generally exaggerated by commentators, see Peter Haggenmacher, Grotius et la doctrine de la guerre juste (PUF 1983) 354–55, note 1725; Peter Haggenmacher, ‘Osservazioni sul concetto di diritto internazionale di Gentili’, in Alberico Gentili nel quarto Centenario del De jure belli. Atti del Convegno, Ottava Giornata Gentiliana, 26-28 novembre 1998 (Giuffrè 2000) 141–43. 126 Gentili, De jure belli (n 123) Book II, ch 21. 127 See Gentili, De jure belli (n 123) Book I, ch 8, 57 (justness of wars commanded by God also applies to the Turks according to their own religion) and ch 21, 166 (what applies in favour of the

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expedience,128 necessity and security,129 justice and honesty.130 These features are recurrent in his reasoning, although they are emphasized differently, depending on the rules at hand. For Gentili, the jurist’s task is to elaborate upon workable discrete rules, and rules work if they are generally observed by persons who may have even opposite views and be in conflict. Rules are obeyed if they are felt as just, if they reflect the relative force of their addressees, if they are perceived as necessary, if they leave to the weakest party some margin of autonomy, if they work two-way and if they ensure a sufficient degree of predictability in the behaviour (and for the benefit) of their addressees. According to this view, jus gentium is not necessarily opposed to Realpolitik and political realism. Yet realism alone is not sufficient, and other factors are equally important, such as the perception of justice and the necessity of rules that are felt by the addressees taken as a whole. As a jurist, rather than as a philosopher or a logical thinker, his endowment was prudence, namely a plurality of ingredients contributing to sound judgment, not logical coherence at any price. On occasion, he refers to the ‘wise practice of the physicians’, reminding the reader of his father’s profession.131 Law must work in practice; it is not speculation, although it requires thinking and judgment. Here, Gentili may well appear ‘superior’ to Grotius precisely to the extent that he accurately avoids philosophical overtones.132 It could then be asserted that Gentili’s jus naturae is (and claims to be) nothing but a ‘common sense of humanity’,133 which is instinctive.134 At times, this concrete jus naturae was considered by Gentili as self-evident but, more often than not, controversial. Frequently, it is identified by looking for usage among ‘all’ peoples— English, also applies against them); Book III, ch 23, 700 (things having ‘no force when confined to one side, are effective if they become reciprocal’). 128 ibid Book III, ch 8, 523 (‘severity ought not to be shown’ by the victor). 129 ibid Book I, ch 13, 95 (‘extreme necessity forms an exception to every law’) and ch 17, 133 (‘safety is always the right of a community’); Book II, ch 2, 221–22 and ch 6, 257 (‘our necessity does not oblige us to violate the rights of our adversaries, or even the rights of any one’); Book III, ch 4, 497 (tributes and acquisition are just for princes) and ch 12, 574 (safety may prevail over honour) and 575 (‘a just and unavoidable necessity makes anything lawful’). 130 ibid Book III, ch 2, 476 (justice prevails over reciprocity in relationships with the barbarians) and 483 (cruelty is certainly unjust); ch 3, 485 (‘[i]t is just that the victor should recover the expenses of the war’); ch 9, 543; ch 14, 592 (justice prevails over the letter of the law); ch 12, 572 (honour may ‘be sought at the expense of a certain amount of injustice’); and ch 13, 578 (peace is enduring if it is fair on both sides). 131 ibid Book I, ch 16, 124; Book III, ch 14, 590. 132 For the view that with the Rationalists of the 17th and 18th centuries (in particular Grotius) natural law became the subject of ‘pure science’ pursued by the mathematical-deductive method newly devised in philosophy by René Descartes, see e.g. Alf Ross, On Law and Justice (Steven and Sons 1958) 245–47. 133 Gentili, De jure belli (n 123) Book II, ch 4, 235 (‘every interpretation is perverted and unnatural which is not clear to the ears of the common people’); Book III, ch 11, 565 (‘common sense teaches us . . .’ and ‘experience, our school-mistress in all things, points it out’). See Coleman Phillipson, Introduction, in Gentili, De jure belli (n 123) 24a. 134 Gentili, De jure belli (n 123) Book III, ch 11, 565 (‘Natural law is natural instinct’); ch 13, 588 (‘Our researches are directed towards natural wisdom, which tells what may justly be done’).

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in fact, among ‘all’ (or nearly all) the peoples of the past and present time that were then known through historical, literary or religious works135—that is to say by looking for what today we call practice.136 Significantly, however, Gentili does not exclusively follow the criterion of usus and of empirical verification. For Gentili, any criterion, taken alone, is not decisive and cannot be an end in itself: it helps to identify, through induction, what is common and ‘self-evident’, and hence more easily perceived as such and obeyed, as a legal rule would require. Even induction in Gentili’s thought is not an end in itself. It is of assistance to the extent that it enables the jurist to identify rules that are accepted and generally obeyed. Not surprisingly, while certain rules are found through the empirical analysis of practice, others are endorsed on the basis of reason and common sense, including when practice militates (at least partly) against them.137 In fact, a legal rule can work in practice where it is supported by reason and a sense of justice, even more than where it has generally (or in a number of cases) been in use among all or nearly all peoples. General maxims and proverbs are often recalled to indicate popular and elementary wisdom (presumably believed to be genuinely universal), assuming that law works to the extent that it conforms to these common denominators.138 Far from revealing only an ethical assessment of rules that are still in fieri, and hence a defective attitude

135

ibid Book I, ch 1, 10–13. He does so, for example, when speaking of embassies (Gentili, De legationibus libri tres [1607] (OUP 1924) Book I, ch 19), of the reasons for war (Gentili, De jure belli (n 123) Book I, ch 7), of war commanded by God (ibid Book I, ch 8) and of declarations of war (ibid Book II, ch 1). 137 For example, in the De jure belli (n 123) Book II, chs 1–2, Gentili concludes that the declaration of war is required despite the existence of a series of cases—evoked by himself—where a declaration of war has not been made and the required conditions exceptionally not to make it were not satisfied (ibid 226–28). In respect of deception in the conduct of hostilities, after listing a series of cases in which deception and fraud had been used, Gentili concludes against its admissibility by making appeal to the ‘conscience of honest men’ (ut sic conscientia bonorum virorum est), i.e. to a judgment which appears moral in character and independent from practice (ibid Book II, ch 4, 239). Similarly, as for poisoning and magic arts in warfare, Gentili concludes for their prohibition on the basis of nineteen reasons, although there exist cases—again evoked by himself—to the contrary, considering inter alia that the use of poison by ‘barbarians’ does not seem to be deemed relevant for the purposes of finding any support in practice (ibid Book II, ch 6, 254 and 256). Equally significant is Gentili’s line of reasoning concerning the admissibility of plots, which are regarded as prohibited despite the existence of ‘many cases from all nations’ that suggest otherwise, in that they constitute precedents of ‘wicked men’ and as such do not deserve to be taken into consideration (ibid Book II, ch 8, 271). 138 See Gentili, De jure belli (n 123) Book I, ch 14, 103 (‘wickedness should be destroyed in the seed, that it may not yield a crop of weeds’); ch 15, 113 (‘no one is bound to rush into a fire for the sake of another’) and 117–18 (‘it is difficult to keep a neighbouring fire from one’s house’, adding that ‘proverbs have some weight’); Book II, ch 8, 276 (‘what you would not wish to have done to you . . .’ as ‘the true foundation of justice’); Book III, ch 2, 480 (‘nothing too much’); ch 11, 566 (‘he who ought to prevent another from doing anything ought not to do it himself’); ch 13, 587 (‘trust your friend only so far as to give him no advantage in case he becomes your enemy’). 136

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in providing truly ‘legal’ rules as they may be understood today,139 this approach discloses Gentili’s prudence and awareness of the variety of ingredients needed for a legal rule to work in practice.140

Vico’s Natural Law as Humankind’s Common Sense A communitarian, Latin-inspired analysis of common sense was also developed by the Italian philosopher Giambattista Vico. In his New Science (1744), he famously defined common sense as ‘an unreflecting judgment shared by an entire social order, people, nation, or even all humankind’ (un giudizio senz’alcuna riflessione, comunemente sentito da tutto un ordine, da tutto un popolo, da tutta una Nazione, o da tutto il Genere Umano).141 His was a thorough critique of René Descartes’ geometrical method (mos geometricus)142 and scientific-demonstrative ideal, later to be upheld by the Enlightenment and Jansenism. Vico also revived the wisdom of the ancient and humanistic rhetoric in order to ground and maintain common good and justice based on a somewhat instinctive sense of natural law. Vico’s concept of common sense was thus conspicuously different from Aristotle’s and Thomas Aquinas’. Deeply rooted in the rejection of the exclusivity of the scientific method, it had an unquestionably moral and communitarian flavour. According to Vico, it is ‘from our common sense about what is necessary and useful to humankind’—necessity and utility being ‘the two sources of the natural law of nations’—that human judgment (umano arbitrio), ‘by nature uncertain’, gains certainty.143 This common sense consists of ‘uniform ideas’, which arose ‘in entire nations . . . unknown to each other’, and thus ‘must have a common basis in truth’. It

139 For this view see Giorgio Badiali, ‘Dallo Ius Gentium allo Ius Inter Gentes: il ruolo di Alberico Gentili agli albori del diritto internazionale moderno’ 92 RivDirInt (2009) 11–12, 23–24, 28, 38–39. 140 Indeed, Gentili is firmly convinced that he is stating the law, as evidenced by those passages where he stops discussing a certain matter when he perceives that the discussion is turning into a ‘political’ one and leaving the realm of law (see for example De jure belli (n 123) Book I, ch 14, 112; Book III, ch 13, 588, as well as ch 14, 590 (‘Everything ought to be carefully weighted’, recalling his father’s medical profession). 141 Giambattista Vico, New Science: Principles of the New Science Concerning the Common Nature of Nations, Third edition Thoroughly Corrected, Revised, and Expanded by the Author [1744] (Penguin Books 2001), Book 1, section 2, No 12, 80. For the original Italian text see Giambattista Vico, Scienza nuova (Rizzoli 2013). 142 However, in his Discours de la méthode: Pour bien conduire sa raison, et chercher la vérité dans les sciences [1637] (Flammarion 2000), English trans Discourse on the Method of Rightly Conducting the Reason, and Seeking Truth in the Sciences (OUP 2008), Descartes himself used the terms ‘good sense’ and ‘common sense’, relating ‘good sense’ to the man of sound judgment and to ‘the power of judging aright and of distinguishing truth from error’, i.e. ‘reason’ (ibid parts 1, 2, 3, and 6), and ‘common sense’ to what is received from tradition and ought to be followed (ibid parts 5 and 6). 143 Vico, New Science (n 141) Book 1, section 2, No 11, 79.

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followed that ‘mankind’s common sense is a criterion which divine providence teaches peoples to aid them in defining what is certain in the natural law of nations’ by ‘looking beyond local variations in this law to recognize its essential unities, on which they all agree’.144 It was Vico’s contention—against ‘all previous ideas about the natural law of the nations, which was believed to have originated first in one nation, from which it was later adopted by others’—that ‘the natural law of nations arose separately among various peoples who knew nothing of each other’ and that ‘[o]nly later, on occasions involving wars, embassies, pacts, and trade, was it recognized as common to all humankind’.145 He believed that ‘[p]opular traditions always have a public basis in truth, which explains their birth and their preservation for many years by entire peoples’, so that a ‘great task’ of his New Science was ‘to discover these bases in truth, even when the passage of time and the subsequent changes in languages and customs have enveloped the truth in falsehood’.146 To this end, ‘[v]ernacular expressions are invaluable witnesses to the customs current among ancient peoples as their languages were forming’.147 As is well known, Vico’s key assumption was that ‘[t]he nature of an institution is identical with its nascence at a certain time and in a certain manner’.148 The nature of things (including the law) is found in their history rather than in abstract reason.

Montessori’s The Discovery of the Child (1948) Maria Montessori’s pedagogical thinking is grounded in the ideas of freedom and progress. These two ideas are interrelated: in her view, progress amounts to inner, human, social and civil liberation,149 i.e. to autonomy and independence.150 This autonomy, in turn, amounts to ‘human dignity’151 and is seen as a path to perfection that makes solidarity possible.152 Montessori kept ‘repeating that the world is making progress and that men must constantly be urged to pursue it’, adding that

144

ibid No. 13, 80–81. ibid. 146 ibid No 16, 81. 147 ibid No 17, 81. 148 ibid No 14, 81 (emphasis in the original). 149 Maria Montessori, The Discovery of the Child [1948] (Random House 1967) 32 (the task is that of ‘raising [children] up above the normal level and making them better’, so as ‘not only to “observe” but also to “transform” children’). For the Italian (subsequent) version of the book, see Maria Montessori, La scoperta del bambino (Garzanti 2016) 33, 115. It is convenient here to call attention to the Italian version (by providing, where necessary, the literal English translation in cases where the two versions differ) because of its greater adherence to Montessori’s nuances. 150 Montessori, The Discovery of the Child (n 149) 55–63. 151 ibid 14–15, 57. 152 ibid 57 (‘“I do not wish to be served because I am not helpless, but we should assist one another since we are social beings”’, ‘keep them from being a burden to others because of their inabilities’). 145

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‘true progress consists in the discovery of something hidden. Frequently it may be something that simply needs to be improved or perfected. No reward is offered for the discovery of something not foreseen; and, in fact, one who tries to bring it to light is frequently persecuted.’153 It is worthwhile to clarify Montessori’s idea of ‘freedom’ and, hence, of autonomy and dignity. To her, freedom means ‘inner strength’ ( forza interiore)154 as well as ‘inner humanity’ (interiore umanità).155 These two terms refer to the capacity of the child (and of humans more generally) to increase their level of attention,156 to resist the temptations of ‘external advantages’ and to act regardless of rewards and punishments (or, more precisely, of their abuse and perversion).157 This ‘attention’ is larger than purely rational argumentation. Far from being a process of satisfaction of external needs, freedom is equated to inner autonomy and detachment. From this perspective, human progress is seen as an advancement in the inner autonomy of the child, in view of a possible ‘regeneration’ of humanity.158 This ‘inner strength’ is seen as the most intimate feature of humans, the one that needs to be most encouraged in children. At the same time, this inner strength is associated with ‘inner humanity’, once humans feel their own strength and are able to help each other. There can be no common sense of humanity and solidarity without a firm training in one’s inner strength and no inner strength in a world depending only on external rewards and punishments. Montessori’s ideas of inner strength and sense of humanity are arguably quite close to the Italian perception of what the human being is about at any time and place. Being an ‘inner’ quality, it cannot be rigorously defined in terms of rational thought. No theory can really bridle it. It is close to good sense. It is different from the Cartesian or Kantian concepts of ‘common sense’ and ‘humanity’, as hinted earlier. It has to do with empathy and is thought to guide pedagogy as well as the law, the two both aiming to steer human behaviour to the best possible conduct in order for human beings to live together. Education is key to human life also in respect of legal regulation: law works within a framework where most people respect

153

ibid 16. ibid 15 (‘Every victory and every advance in human progress comes from some inner strength’). 155 ibid 17 (‘The real punishment of a normal man is for him to lose consciousness of his own strength and greatness that form his inner humanity . . . But men, unfortunately, often do not notice the real punishments which threaten to overwhelm them’). 156 ibid 14, 106 (‘a life ruled by reasonableness and awareness is emerging triumphant’, ‘The lesson is a call to attention’). 157 ibid 59 (‘There is thus truly born a new child, a child that is morally superior to one who is treated as a helpless and incompetent being. This inner liberation is accompanied by a new sense of dignity. From now on a child becomes interested in his own conquests and remains indifferent to the many small external temptations which would formerly have been so irresistible to his lower feelings’). 158 ibid 18, 47 (‘he who aims at such a renewal is struggling for the regeneration of mankind’, ‘As a matter of fact, the Children’s Houses represent not only an advance in society but also in humankind’). 154

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each other because they are able to recognize the intrinsic evil of certain acts, regardless of the legal rules.159

4.2.3

A Synthesis: Levi’s Christ Stopped at Eboli (1945)

A meaningful combination of the Italian realist and humanist attitudes is found in Carlo Levi’s Christ Stopped at Eboli (1945). This novel, in fact, describes the real stay of Carlo Levi, who was born in Turin, in a village of the South of Italy, in consequence of his conviction of ‘internal exile’ (confino) by the then fascist state for being an anti-fascist. In Levi’s novel, there are certain circumstances that cannot be mechanically transposed to the present context: (a) today, the Italian state is no longer the fascist state of the novel, (b) today’s peasants are no longer similar to those evoked in the novel, (c) people at large in Italy are no longer peasants and (d) the South of Italy has dramatically changed. Nonetheless, mutatis mutandis there is something in Levi’s words that captures an Italian widespread sentiment that is still alive today. The Italians continue to think of themselves as other than the state (and its law). The state and its authorities are something managed by ‘others’, mainly for their personal gain. Life and law unfold in the daily, direct relationships among people, possibly without any state intermediation. In Levi’s words, ‘To the peasants the state is more distant than heaven and far more of a scourge, because it is always against them. Its political tags and platforms and, indeed, the whole structure of it do not matter . . . Their only defence against the state and the propaganda of the state is resignation, the same gloomy resignation, alleviated by no hope of paradise, that bows their shoulders under the scourges of nature.’160 However, it is precisely in this ‘realist’, crude view that a deep and strong sense of humanity (senso umano di un comune destino) and brotherliness as suffering together ( fraternità passiva, questo patire insieme) do emerge: from our sharing of a common fate. It is a ‘feeling’, not a ‘concept’ nor an ‘act of will’ (un senso, non un atto di coscienza), and can hardly be expressed by words (non si esprime in discorsi o in parole). It is not an ‘illusion of reason’ (le illusioni della ragione), nor has it anything to do with causes and effects (non c’è ragione né cause ed effetti). Patience and silence are the only answers (la vita non può essere, verso la sorte, che pazienza e silenzio). In Levi’s words, ‘They [the peasants] were not concerned with the views of the political prisoners who were in compulsory residence among them [like Levi himself], or with the motives for their coming. They looked at them kindly 159

ibid 17 (‘We are not honest because we fear the law; we refrain from theft and murder because we recognize the intrinsic evil of such acts . . . Whether the penal code effectively reaches its goal of hindering crime or not, it has undoubtedly been drawn up for a very limited class of individuals: the criminals. The vast majority of the citizens are honest even when they are unaware of the sanctions of the penal law’). 160 Carlo Levi, Christ stopped at Eboli (Penguin Books 2000) 78. For the original Italian text, see Cristo si è fermato a Eboli (Einaudi 1945).

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and treated them like brothers because they too, for some inexplicable reason, were victims of fate . . . This passive brotherliness, this sympathy in the original sense of the word, as suffering together, this fatalistic, comradely, age-old patience, is the deepest feeling the peasants have in common, a bond made by nature rather than by religion . . . They live submerged in a world that rolls on independent of their will . . . But they have a lively human feeling for the common fate of mankind and its common acceptance. This is strictly a feeling rather than an act of will; they do not express it in words but they carry it with them at every moment and in every motion of their lives, through all the unbroken days that pass over these wastes . . . You, too, are subject to fate. You, too, are here because of the power of ill will, because of an evil star; you are tossed hither and yon by the hostile workings of magic. And you, too, are a man; you are one of us. Never mind what motives impelled you, politics, legalities, or the illusion of reason. Such things as reason, or cause and effect, do not exist; there is only an adverse fate, a will for evil, which is the magic power of things. The state is one shape of this fate, like the wind that devours the harvest and the fever that feeds on our blood. There can be no attitude towards fate except patience and silence. Of what use are words? And what can a man do? Nothing. Armed, then, with patience and silence, taciturn and impenetrable, the few peasants who had not escaped to the fields attended the gathering in the square. They seemed not to hear the blithe trumpeting of the radio, which came from too far away, from a land of ease and progress, which had forgotten the existence of death and now called it up as a joke, with the frivolity of an unbeliever.’161 One could extract from the above text two key features of the Italians: (a) detachment, which often becomes distrust, towards any kind of power (authorities, structures, etc.), including historically foreign rulers that invaded Italy over time and the Papal authority in Rome, and (b) recognition of ‘our’ common humanity, of the ‘we’ that is not part of the power structure, we the people being subject to one and the same fate, from natural disasters to an arbitrary political and legal power.

5 A Realist-Constructivist Approach to International Law It seems that the Italians share a certain tension between legal disenchantment and engagement. They expect the law to bring about order and justice, and at the same time they see the law as the typical formal strategy of the strongest or, in any event, a technique to artificially level out people who do no justice to people’s inner peculiarities. My personal answer to this tension is a realist-constructivist approach

161

Levi, Christ stopped at Eboli (n 160) 79–80.

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to international law. I have developed it elsewhere, so that very few notes will suffice here.162

5.1

Realism-Constructivism

Realism demands to identify existing legal rules as rules that on average really work in society for the generality of their addressees as a whole. It avoids pure speculation and moralism and identifies the law in force on the basis of objective, and objectively communicable, data. Constructivism implies that values, while not necessarily coincident with the existing rules, are essential to guide the struggle for a better (or more just) international law tomorrow. It explains the crucial role of values as important and indeed indispensable dynamic factors of change in the law towards justice. This process is already now part of international law. The dynamics of international law is no less important than its statics: international custom has to be changed, and its change is only possible by deviating from the law in force. Domestic courts, especially supreme courts, may trigger such a process by applying domestic law, in particular higher-in-rank constitutional law, rather than international law. This deviation is indeed a violation of international law, since domestic law cannot be invoked to justify a violation of international law, but is somewhat different and to be distinguished from ‘ordinary’ violations of international law, to the extent that it is aimed at changing the law (allegedly) for the better (of all). The difference has to be argued: e.g., the courts have to show that a ‘promotional’ violation is ‘necessary’ to change the law towards justice, as any state and its organs could reasonably recognize. The above approach is neither ‘positivist’ nor ‘naturalist’ in essence: it searches for empirically determinable rules, to find out what is the ‘law’ that effectively works in society. At the same time, it conceives of the law as that which its addressees as a whole believe it to be, thus assuming that beliefs are constantly challenged and taken over by others, and they need to be pursued for a better law in the future through actual behaviour today. Action is as much important to law as it is knowledge. Just as the existing law is the result of past struggles, current struggles are the basis of future law. Law statics and law dynamics should be argued together. Nor does the formula ‘realist-constructivist’ coincide with the typical positivist dichotomy lege lata versus lege ferenda. Realist means that the law ‘in force’ is the one that its addressees as a whole believe to be their law. This law should be visibly recognized and complied with on average; it is not an ideal law from the standpoint of this or that enlightened scholar and his/her personal view of justice. It is the law that ‘works’ among its addressees taken as a whole, according to their viewpoint. Consequently, the law in force may be of any kind: ‘divine’, ‘natural’, ‘positive’,

162

Focarelli, International Law a Social Construct (n 39) 1–140; Carlo Focarelli, Trattato di diritto internazionale (UTET 2015) 1–53.

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‘magical’, ‘rational’, etc. Traditional theoretical categories are hardly relevant. What counts is the belief shared by people. In this sense, law is always mythic, and ‘realism’ does not exclude divine or natural law, nor does it necessarily coincide with positive law. In turn, constructivism means that the struggle for (more, less, just) law is part of the process of law-making and unmaking, not a possible or merely theoretical appendix. Nor does the formula ‘realist-constructivist’ coincide with the dichotomy ‘progressivism versus conservatism’. Unlike what might be expected at first sight, the realist component may well be ‘progressive’ and the constructivist component (as materialized by society as a whole) may well be ‘conservative’ or even ‘reactionary’, according to the meaning that those who believe in these terms assign to them. Realism may well be the sounder starting point for humanitarian action, whereas humanitarian struggle may well conceal the pursuit of private advantage.

5.2

The Ferrini Saga

A good example of the realist-constructivist approach may be offered by the Ferrini saga, in relation to the possible denial of jurisdictional immunity to foreign states that are accused of serious human rights violations. This may allow to see an Italian way to balance legal detachment and engagement and, at the same time, to critically expose Italian scholarly opportunism. As is well known, in 2004 the Italian Court of Cassation took the view that Germany could be denied jurisdictional immunity insofar as it was accused of serious violations of human rights committed by the Third Reich in 1944–1945 during the occupation of Italy.163 This ruling was affirmed in many subsequent decisions on the basis of a variety of reasons, one being the hierarchical superiority of the peremptory rules on human rights when balanced against the customary international law rule on jurisdictional immunity. Most Italian scholars have defended this jurisprudence. For my part, since 2005 I have taken the position that it lacked legal basis and that both the courts and the Italian doctrine en masse were trying to present as ‘the law in force’ what was, at best, a better law for the future. There was simply no practice supporting such stance. This was also the position taken by the ICJ in 2012, at the end of the proceedings initiated by Germany a few years earlier. During the ICJ proceedings, the Italian government, which had taken the side of Germany in all domestic proceedings, found itself in a situation in which all of a sudden it had to defend itself against Germany. It did so with little success. However, most Italian scholars continued to defend the Ferrini domestic case law by strongly criticizing the ICJ’s decision, which was labelled as ‘conservative’. In public debates on the ICJ’s judgment, only defenders of the Ferrini case law were

163

For facts, case law and references see Focarelli, International Law a Social Construct (n 39) 433–37; Focarelli, Trattato di diritto internazionale (n 162) 893–918.

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invited. In any event, the lower courts immediately found that the ICJ’s judgment was self-executing in the Italian legal system and discontinued all ongoing proceedings. The Court of Cassation itself soon followed suit. Moreover, to make sure that the courts complied with the ICJ’s judgment, the government (re-adopting its previous pro-Germany stance, after the ICJ parenthesis) proposed and the Parliament adopted a legal rule that made obligatory for the courts to comply with the ICJ’s judgment (Article 3 of Law No. 5 of 14 January 2013). At this point, the Tribunal of Florence raised an issue of constitutionality concerning the effects of the ICJ’s judgments in the Italian legal system. In its Judgment No. 238 of 22 October 2014, the Italian Constitutional Court affirmed that, in Ferrini-like circumstances, Articles 2 (‘The Republic recognises and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed’)164 and 24 (‘Anyone may bring cases before a court of law in order to protect their rights under civil and administrative law’)165 of the Constitution are violated. It thus annulled the domestic rules requiring the courts to comply with the ICJ’s judgment and stated that in these circumstances, customary international law does not ‘enter’ the Italian legal system at all through Article 10(1) of the Constitution (‘The Italian legal system conforms to the generally recognised rules of international law’).166 In the aftermath of this decision, once again, only defenders of the Ferrini case law were invited to public debates, including the constitutional judge who had written the decision. As a result, all legal proceedings before many Italian courts have been resumed, though now in overt violation of international law and the ICJ’s decision. The ‘bad reputation’ of the Italian authorities in complying with international law as a consequence of Judgment No. 238/2014 was also hinted at by India in the Enrica Lexie arbitral proceedings currently under way, this being another case where the Italian doctrine’s unilateralism, with few exceptions, has proved irresistible. I am afraid that I cannot endorse Judgment No. 238/2014, nor the favourable comments expressed towards it by most Italian scholars, for a variety of reasons that I pointed out elsewhere.167 They appear to me, just like the arbitrariness that may underlie the ‘human elasticity’ of the law at the zebra crossings in Italy, as simply inspired by opportunism disguised as a form of human attunement. Briefly, the Ferrini case law had, and still has, no basis in customary international law. Many Italian arguments are sophisms, such as let us take a ‘different’ concept of custom, let us make jus cogens prevail over custom, let us make immunity ‘follow’ logically from the fact that peremptory rules have been breached, etc. Practice may ‘La Repubblica riconosce e garantisce i diritti inviolabili dell'uomo, sia come singolo, sia nelle formazioni sociali ove si svolge la sua personalità’. 165 ‘Tutti possono agire in giudizio per la tutela dei propri diritti e interessi legittimi’. 166 ‘L’ordinamento giuridico italiano si conforma alle norme del diritto internazionale generalmente riconosciute’. 167 Focarelli, Trattato di diritto internazionale (n 162) paras 1.11, 97.4, 112.11–12, 113.14–15, 150.2, 151.3, 152.22, 301.14–17; see also, more extensively, Carlo Focarelli, Diritto internazionale (5th edn Kluwer 2015) para 129.16. 164

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be unpleasant, but it is clear: states have a right to jurisdictional immunity even when they are accused of serious human rights violations. This is what all the courts (both domestic and international) other than the Italian ones have stated thus far. Italian courts could not deny immunity to Germany on the basis of international law—so far, my ‘realism’. It is, however, perfectly comprehensible that immunity should hopefully be denied in cases of serious violations of human rights. How could such a rule come to being once it has been established that it does not exist at present? By triggering a rule-making process. Italian courts could reach their conclusions immediately on the basis of Italian (constitutional) law, rather than on the basis of international law, and expect the courts of other states to follow suit in order for a new rule to come to existence. This had to be done before the ICJ judgment, not after, and it had to be done by ‘tailoring’ the new rule (according to an appropriate interpretation of the Italian Constitution) in such a way that it could reasonably be accepted by others. By way of example, for an exception to be generally reasonably acceptable, it should only apply to present and future cases and to well-determined human rights violations, as well as to all states equally, and in cases where the victims have no alternative judicial remedies available, so as to avoid, respectively, unlimited retroactivity and the denial of immunity with respect to minor human rights violations or against ‘selected’ states, or when the victims may otherwise obtain redress.168 In other words, Italian courts would have to ‘construct’ the new rule by showing that it would be reasonable for all to accept it on the basis of its justness. In this sense, I do understand the ‘struggle’ of most Italian scholars in favour of the Ferrini case law, yet it is a struggle, and a struggle, however valuable, is not the law. By insisting that Ferrini was the law, the Italian courts have simply failed to explain why the desired rule was potentially acceptable to others, and the Italian position has proved so far merely unilateralist. This is not to say, of course, that international law might not change in the future in accordance with the Ferrini case law.

6 Conclusion The Italian contribution to the European international law tradition is, in my view, a sense of inner humanity and a realistic approach to life, law and institutions. Realism, inner humanity and common sense in legal issues are vital. They cannot be theorized, and yet their weight is indispensable to avoid that theories become, in practice, mechanical or empty, if not harmful, blind or arbitrary. In turn, the boundary between such valuable attitudes and opportunism remains dangerously blurred. I propose a realist-constructivist approach to international law that is capable of balancing realism and humanism, disenchantment and engagement, the law as it

168

Focarelli, International Law a Social Construct (n 162) 433–37.

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stands and the personal responsibility of jurists to spend their life struggling for a better law. I reject the opportunistic strategy that elevates to ‘law’ whatever seems desirable depending on the circumstances.

References Ago Roberto, ‘Positive Law and International Law’ 51 AJIL (1957) 691–733. Ago Roberto, Scienza giuridica e diritto internazionale (Giuffrè 1950). Alland Denis, Anzilotti et le droit international public (Pedone 2012). Anzilotti Dionisio, Corso di diritto internazionale, I (4th edn Cedam 1955). Anzilotti Dionisio, Scritti di diritto internazionale pubblico, II-1 (1956). Anzilotti Dionisio, Teoria generale della responsabilità dello stato nel diritto internazionale (1902). Avicenna, Liber de anima seu sextus de naturalibus (Simone van Riet, 1972). Badiali Giorgio, ‘Dallo Ius Gentium allo Ius Inter Gentes: il ruolo di Alberico Gentili agli albori del diritto internazionale moderno’ 92 RivDirInt (2009) 5–39. Bergson Henry, Ecrits et paroles [1895] (Paris: PUF, 1957). Cannizzaro Enzo, ‘La doctrine italienne et le développement du droit international dans l’aprèsguerre: entre continuité et discontinuité’ 50 AFDI (2004) 1–23. Cassese Antonio, ‘Diritto internazionale’, in L Bonanate (ed), Studi internazionali (Edizioni della Fondazione Giovanni Agnelli 1990) 113–158. Catellani Enrico, ‘Les maîtres de l’École italienne du droit international au XIXe siècle’ 46 Recueil de Cours (1934) 705–825. Charles H Kahn, ‘Aristotle on Thinking’ in Martha C Nussbaum and Amelie Oksenberg Rorty (eds), Essays on Aristotle’s De Anima (Clarendon Press 1992) 359–80. Chimni B.S., ‘Is There an Asian Approach to International Law?’ (ASIL Conference 2009) at . Conforti Benedetto and Angelo Labella, An Introduction to International Law (Nijhoff 2012). Conforti Benedetto, Diritto internazionale (10th edn Editoriale Scientifica 2014). Crivellaro Jacopo, ‘How did Anzilotti’s Jurisprudential Conception Influence the Jurisprudence of the Permanent Court of International Justice?’ at . Descartes René, Discours de la méthode: Pour bien conduire sa raison, et chercher la vérité dans les sciences [1637] (Flammarion 2000), English trans Discourse on the Method of Rightly Conducting the Reason, and Seeking Truth in the Sciences (OUP 2008). Fiore Pasquale, Il diritto internazionale codificato e la sua sanzione giuridica (3rd edn UTET 1900). Fiore Pasquale, Nuovo diritto internazionale pubblico secondo i bisogni della civiltà moderna (Casa Editrice e Tip. degli Autori-Editori 1865). Fiore Pasquale, Trattato di diritto internazionale pubblico (2nd edn UTET 1879–1884). Focarelli Carlo, ‘Customary Foundations of jus gentium in Francisco Suárez’s Thought and the Concept of International Community in Contemporary International Law’ 16 ItYBIL (2006) 41–56. Focarelli Carlo, ‘Jus Gentium in Alberico Gentili: A Call for Prudence and the Common Sense of Humanity’ 100 RivDirInt (2017) 329–55. Focarelli Carlo, International Law a Social Construct: The Struggle for Global Justice (OUP 2012). Focarelli Carlo, Trattato di diritto internazionale (UTET 2015a). Focarelli Carlo, Diritto internazionale (5th edn Kluwer 2015b). Gaja Giorgio, ‘Dualism—A Review’, in Janne E Nijman and André Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (OUP 2007) 52–62.

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Gaja Giorgio, ‘Le prime annate della “Rivista di diritto internazionale” ed il rinnovamento del metodo’ 16 Quaderni Fiorentini per la storia del pensiero giuridico moderno (1987) 485–99. Gaja Giorgio, ‘Positivism and Dualism in Dionisio Anzilotti’ 3 EJIL (1992) 123–38. Gentili Alberico, De iure belli libri tres (Clarendon Press, 1933). Gentili Alberico, De legationibus libri tres [1607] (OUP 1924). Gianelli Alessandra, ‘Il contributo della dottrina italiana al tema della responsabilità internazionale degli Stati per fatto illecito: qualche osservazione’ 99 RivDirInt (2016) 1042–70. Gies Lieve, Law and the Media: The Future of an Uneasy Relationship (Routledge 2008). Guicciardini, Francesco, Maxims and Reflections (Ricordi) (University of Pennsylvania Press 1965), Italian edn Ricordi, H. Kahn Charles, ‘Sensation and Consciousness in Aristotle’s Psychology’ 48 Archiv für Geschichte der Philosophie (1966) 43–81. Haggenmacher Peter, ‘Osservazioni sul concetto di diritto internazionale di Gentili’, in Alberico Gentili nel quarto Centenario del De jure belli. Atti del Convegno, Ottava Giornata Gentiliana, 26-28 novembre 1998 (Giuffrè 2000) 129–143. Haggenmacher Peter, Grotius et la doctrine de la guerre juste (PUF 1983). Hirshman Albert O, The Rhetoric of Reaction: Perversity, Futility, Jeopardy (The Belknap Press of Harvard University Press 1991). Jouannet Emmanuelle, ‘French and American Perspectives on International Law: Legal Cultures and International Law’ 58 MaineLRev (2006) 291–336. Kant Immanuel, Kritik der Urteilskraft [1790] (Meiner 1959), English translation The Critique of Judgement (OUP 2007). Kant Immanuel, Prolegomena zu einer jeden künftigen Metaphysik, die als Wissenschaft wird auftreten können [1783] (Meiner 1957), English translation Prolegomena to Any Future Metaphysics (Forgotten Books 2008) Kennedy David, ‘The Disciplines of International Law and Policy’ 12 LJIL (1999) 9–133. Kunz Josef L, ‘Roberto Ago’s Theory of a “Spontaneous” International Law’ 52 AJIL (1958) 85–91. Levi Carlo, Christ stopped at Eboli (Penguin Books 2000), Italian edn: Cristo si è fermato a Eboli (Einaudi 1945). Machiavelli Niccolò, Discourses on Livy (OUP 1997), Italian edn: Discorsi sopra la prima Deca di Tito Livio (Rizzoli 1984). Machiavelli Niccolò, The Prince (Penguin Books 2009), Italian edn Niccolò Machiavelli, Il principe (Einaudi 2014). Manzoni Alessandro, I promessi sposi [1840–1842] (Newton Compton 2004) 489; in English: The Betrothed (Penguin Books 1972). Marston Geoffrey, ‘Armed Intervention in the 1956 Suez Canal Crisis: The Legal Advice Tendered to the British Government’ 37 ICLQ (1988) 773–817. Messineo Francesco, ‘Is There an Italian Conception of International Law?’ 2 Cambridge Journal of International and Comparative Law (2013) 879–905. Montessori Maria, The Discovery of the Child [1948] (Random House 1967), Italian (subsequent) version: La scoperta del bambino (Garzanti 2016). Nuzzo Luigi, Origini di una scienza: diritto internazionale e colonialismo nel XIX secolo (Vittorio Klostermann 2012) 87–168. Passero Laura, Dionisio Anzilotti e la dottrina internazionalistica tra Otto e Novecento (Giuffrè 2010). Pildes Richard H, ‘Conflicts Between American and European Views of Law: The Dark Side of Legalism’ 44 VaJIntlL (2003-2004) 145–67. Quadri Rolando, ‘Le fondement du caractère obligatoire du droit international public’ 80 Recueil des Cours (1952–I) 579–633. Quadri Rolando, Diritto internazionale pubblico (5th edn, Liguori 1968). Reid Thomas, An Inquiry Into the Human Mind [1794] (Edinburgh University Press 2010). Ross Alf, On Law and Justice (Steven and Sons 1958).

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Ruiz Fabri Hélène, ‘Reflections on the Necessity of Regional Approaches to International Law Through the Prism of the European Example: Neither Yes nor No, Neither Black nor White’ 1 Asian Journal of International Law (2011) 83–98. Salerno Francesco, ‘L’affermazione del positivismo giuridico nella scuola internazionalista italiana: il ruolo di Anzilotti e Perassi’ 95 RivDirInt (2012) 29–65. Sereni Angelo P, The Italian Conception of International Law (Columbia University Press 1943); Francesco Salerno, ‘La Rivista e gli studi di diritto internazionale nel periodo 1906-1943’, 90 RivDirInt (2007) 305–43. Severgnini Beppe, An Italian in Italy (Rizzoli 2007), translated from La testa degli italiani (Rizzoli 2005). Stanghellini Giovanni, Disembodied Spirits and Deanimated Bodies: The Psychopathology of Common Sense (OUP 2004). Tomasi di Lampedusa Giuseppe, The Leopard (Vintage Books 2007), Italian edn: Il Gattopardo (Loescher 2008). Truyol y Serra Antonio, Histoire du droit international public (Economica 1995). Verdirame Guglielmo, ‘“The Divided West”: International Lawyers in Europe and America’ 18 EJIL (2007) 553–80. Vico Giambattista, New Science: Principles of the New Science Concerning the Common Nature of Nations, Third edition Thoroughly Corrected, Revised, and Expanded by the Author [1744] (Penguin Books 2001), Italian edn: Scienza nuova (Rizzoli 2013). Weil Eric and James G Labadie, ‘Good Sense or Philosophy’ 3 Diogenes (1955) 29–49. Wijffels Alain, ‘Antiqui et Recentiores: Alberico Gentili—Beyond Mos Italicus and Legal Humanism’, in Paul J du Plessis and John W Cairns (eds), Reassessing Legal Humanism and its Claims. Petere Fontes? (Edinburgh University Press 2016) 11–40. Ziccardi Piero, ‘Evoluzione e traguardi della scuola italiana di Diritto internazionale nel XX secolo’, in Fernando M Mariño Menéndez (ed), El Derecho internacional en los albores del siglo XXI: Homenaje al profesor Juan Manuel Castro-Rial Canosa (Trotta 2002) 715–34.

The French Tradition of International Law Andrea Hamann

I am deeply indebted to my students, whose questions, remarks, and reactions—not limited to international law— have helped me become aware of our tradition(s) and engage with them in more ways that I could imagine. This paper is dedicated to them. Most translations of citations of French authors reproduced in this paper are by me, unless the reference given is the officially published English translation of the original work.

1 A Traditional Introduction One of the French traditions that is most well known in academic circles abroad is a formal one. Admittedly, it is not specific to international law and not even to law in general. It is indeed deeply rooted in the entire education system, to such an extent that its tenets are pervasive in most fields of social and human sciences throughout generations. It consists of a formal methodology of writing. Most written academic exercises that (law) students are trained in are either a “dissertation” (a sort of essay) or a “commentary,” and how one should dissert or comment is in fact rigidly framed by formal constraints. Already in school students are taught the “proper” way to structure different types of writing, and these formal constraints are endlessly reproduced in higher education. The number of textbooks and websites specifically dedicated to teaching method and methodology to students is staggering and quite revealing in itself.1

To cite only a few, and only in the field of legal studies: Nicolas Cayrol and François Grua, Méthode des études de droit (Paris: Dalloz 4th edn 2017); Virginie Rapp-Cassigneul, La méthodologie de la dissertation et du commentaire d’article en schémas (Paris: Ellipses 2015 – 1

A. Hamann (*) University of Strasbourg, Faculty of Law (CEIE – EA 7307), Strasbourg, France e-mail: [email protected] © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 P. Hilpold (ed.), European International Law Traditions, https://doi.org/10.1007/978-3-030-52028-1_5

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In legal education (and oftentimes also scholarship), one of the foundational formal constraints—nowhere explained in its rationale but nevertheless passed on from generation to generation and taught in most classrooms—is that an argument should be made according to a twofold structure, in which the two main parts are themselves divided into two subparts.2 If French law students read this paper, they will recognize this as le plan en deux parties deux-sous-parties.3 The supposedly ever-binary essence of any (legal) issue has always been a matter of profound perplexity to me and of great anguish to students (with time, however, the anguish subsides as any tradition ends up producing automaticities—so much indeed that most students would panic if they were asked to write a paper without the binary structure). Although it could be argued that these formal constraints in themselves call for an in-depth discussion, this is not the place to engage in it. But we should at least reflect on Roland Barthes’ warning that when methodology proposes itself as a pure metalanguage, it will inevitably partake in the vanity of any metalanguage. As he aptly put it, “when everything passes through method, there is no room left for writing.”4 Most students eventually realize the illusion behind the diktat of binary writing (and therefore, inevitably, also binary thinking), at the latest when they enter the job market—academia excluded—and discover that the memo they are asked to write by the partner in the law firm where they intern does not intrinsically require to be structured in two parts. The only requirement, at least if they want to keep their job, is that it is useful. What stays with all of us who were taught these constraints, however, is a certain way of approaching and introducing a subject, any given subject.

the reader should note that the book presents the methodology in schemata. . .); Céline LarondeClérac et al., Méthodologie des exercices juridiques (Paris: LGDJ 4th edn 2017); Jean-Louis Sourioux and Pierre Lerat, L’analyse de texte – Méthode générale et applications au droit (Paris: Dalloz 5th edn 2004); David Bonnet, Exercices pratiques de méthodologie juridique (Paris: Ellipses 2015). Following a basic market logic, the number of available books on method is evidence that there is a strong demand, which speaks to the emphasis given to method in legal education. To see the dizzying number of internet sources on legal method and methodology, the reader can simply google the words “méthode juridique” or “méthode droit dissertation” or “méthode droit commentaire” and see for themselves how many entries come up. It should be noted, however, that this is by no means a distinctive feature of legal studies: the reader would find the same results if they searched for the methodology (let’s say) in philosophy or literature studies. 2 The reader can randomly open any French academic law journal and they will find that most articles, whether they are broader reflections on a topic or commentaries of a judicial or arbitral decision, are structured in two parts and two sub-parts. 3 Interestingly, every academic field seems to have its own formal tenets. Students of philosophy for instance will mainly be taught “le plan thèse-antithèse-synthèse”, also known as “le plan dialectique” which, unsurprisingly, is directly drawn from Hegelian dialectic. 4 Roland Barthes, ‘Ecrivains, intellectuels, professeurs’ in Roland Barthes, Le bruissement de la langue – Essais critiques IV (Paris: Seuil 1984) 377. He concludes his remarks by observing that “nothing is more efficient, to kill research and add it to the waste pile of abandoned work, nothing is more efficient than Method”.

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Structuring an introduction is indeed also rigidly codified in French (legal) education, with different rules and constraints according to the nature of the exercise and sometimes even according to the legal disciplines.5 We are taught that there are several indispensable elements in the structure of any introduction of any piece of writing. Among them are the two following: (1) defining the terms of the topic and (2) properly framing the issue—French law students will recognize this as définir les termes du sujet and délimiter le sujet (or similar expressions). They are rigidly inserted into the French formal methodology taught to students,6 and it takes many of them (myself included) years to realize that neither is actually a feature of a distinct “French way” of writing an essay or commentary, nor is it a specific feature of legal writing in particular. Defining and framing what we are talking about is simply indispensable to any form of sound argument and shouldn’t need rigid methodological codification.

2 An Introduction to Tradition Keeping this in mind, the question begs to be asked: what is it about when we are talking or thinking about the French tradition of international law or any other national or regional tradition of international law? Tradition is a powerful word. It is also a serious one, and it requires to be taken seriously. After all, a great number of scholars have spent a great amount of time thinking and writing about tradition, with a staggering amount of research output. Admittedly, most of these scholars are not international lawyers and not even lawyers of any kind.7 Yet if international law scholars were asked about their national international law traditions, most of them would probably, quite spontaneously, come up with an answer. In all likelihood, they would focus on what they are most familiar with—international law—and

5

Most law students are in fact under the impression that there is a specific methodology for structuring the introduction to a commentary of a decision by the French Cour de cassation (or any court with civil jurisdiction), a methodology that they feel is very different from the one they need to abide by when commenting a decision by an administrative court. This impression is of course not produced by the students’ own imagination but is created and fostered by their teachers. See for instance Roger Mendegris and Georges Vermelle, Le commentaire d’arrêt en droit privé – Méthodes et exemples (Paris: Dalloz 7th edn 2004). 6 Most teachers (and therefore students) even argue that there is a specific order in which these elements should appear in an introduction, starting with the (in)famous “phrase d’accroche” – a cause of great stress for students, and generally of disappointment for the reader – and ending with the “annonce de plan”. Unfortunately, students are almost never told that the “phrase d’accroche” should be dedramatized, as it is nothing but the unavoidable opening sentence of their work, and that the “annonce de plan” is just the common-sensical announcement of the order of analysis in which the paper will proceed. 7 One should note, however, the focus in recent years on the idea of national or regional legal traditions. For an overview of the current literature, see the introduction by Peter Hilpold in this volume.

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would thus give an account of how it is practiced or thought or written about in their national system, who the most famous scholars are and what characterizes their theories, etc. These are, of course, admissible answers. However, the crucial point to be made here is that, in doing so, they would presuppose a definition of tradition that is grounded in nothing else but their own representation of tradition, and without even being aware of it, they would project this representation onto any issue relating to their disciplinary field. The fundamental questions thus get quashed: what is a tradition? What are its distinctive features? When does a social practice or behavior or way of thinking qualify as “tradition?” How does it operate? And, most crucially, who is entitled to speak authoritatively about tradition and thus tell us what it is and what it is not?

3 Of Voids: Disciplinary Thinking in a Blank Disciplinary Field We are all educated, if not naturally inclined, to frame the world in the terms of the disciplinary field we belong to. John Austin famously coined this as the “scholastic view”;8 Pierre Bourdieu developed it into a full-fledged theory grounded, among others, in the notions of field and of habitus.9 Eventually, he more drastically recoined it as the “scholastic bias.”10 As far as probably most of us (author and readers) are concerned, our disciplinary field is the law, and this field strongly determines our intellectual, methodological, and even linguistic settings—in short, the way in which we think.11 As members of any such field, we are generally not inclined toward the experiment of what Karl Popper called “falsification,” i.e., searching for evidence that challenges our disciplinary beliefs;12 on the contrary,

8

John L. Austin, Sense and Sensibilia (Oxford: OUP 1962) 3-4. For instance, in Pierre Bourdieu, ‘The Scholastic Point of View’, (1990) 5 Cultural Anthropology 380-391; Sociologie générale vol. 1 – Cours au Collège de France 1981-1983 (Paris: Seuil 2015) 536 s. [on the notion of “field”]. 10 Ibid., Sociologie générale vol. 1 90-93. 11 Nothing expresses this more powerfully than the claim openly made by some authors that there is a law-specific way of reasoning, grounded in formalism and rule-dependence, and that one needs to learn how to “think like a lawyer”. See Frederick Schauer, Thinking Like a Lawyer – A New Introduction to Legal Reasoning (Cambridge, Mass.: Harvard University Press 2009); Kenneth J. Vandevelde, Thinking Like a Lawyer – An Introduction to Legal Reasoning (New York: Routledge 2nd edn 2018). Also noteworthy is Olivier Corten, Méthodologie du droit international public (Bruxelles: Editions de l’Université de Bruxelles 2009): although it exposes a variety of methodological approaches and their theoretical underpinnings, the title alone is suggestive of the idea that there is but one methodology of international law. 12 Karl Popper, Conjectures and Refutations – The Growth of Scientific Knowledge (Abingdon: Routledge 1963) 6. 9

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we dominantly have a “confirmation bias,” meaning that we are inclined to look only for evidence and arguments supporting what we believe or think we know.13 Hugo Mercier and Dan Sperber go as far as suggesting that our confirmation bias is even, more drastically, a “myside bias.”14 In any event, venturing outside of the law to address an issue, and exploring other fields, their concepts, and how they make use of them, is not a widely shared inclination in the profession. While this is regrettable in general, it is particularly troubling as regards the specific issue at hand, for the world of the law does not even know or include “tradition” (except in a specific meaning, as an object of protection (traditional knowledge)). But voids are uncomfortable. In the end, what will typically happen when we are faced with an unknown object, outside our disciplinary concepts and methodologies, is that our professional biases and (acquired) reflexes will take over. This might lead us to simply ignore and discard the unknown object and treat it as something that goes without saying. Ultimately, we would thus project our subjective representation of the unknown object (tradition) into the field of the known (international law), where we are more comfortable, thereby bypassing altogether the requisite of engaging with the concept that we have authoritatively projected into our international law world. We might also follow a different avenue and be inclined to link any concept unknown to our discipline to what it comes closest to in our own disciplinary world. In the field of international law (or common law, for that matter), thinking about “tradition” might therefore tempt us into briefly contemplating the legal concept of custom. The reflex would not be utterly outlandish, although of course trained international lawyers know it is beside the point. However, when I recently asked a large beginners’ class in international law who knew nothing at this point about customary law what they thought “custom” might be, one student immediately gave a one-word answer: “tradition.” The intuitive association struck me as very interesting. But of course, international lawyers will think they know better. After all, we are trained in the Article 38 doxa. We know what custom is. And “tradition” definitely has nothing to do with it—or so it would seem, according to the “general practice + opinio juris” mantra. And yet it seems to me that my student got it right—in some sense at least, if not the legal sense. The only thing that separates his intuition that custom is tradition from our trained international lawyers’ knowledge that custom is not tradition is that we were trained to analyze the world in certain ways, the ways of the law. Our universe of international law is dominantly understood and represented as being a

The idea (and scientific experiment) was initially introduced by Peter C. Wason, ‘Reasoning About a Rule’, (1968) 20 Quarterly Journal of Experimental Psychology 142. The expression “confirmation bias”, however, was coined only a few years later by Clifford R. Mynatt, Michael E. Doherty and Ryan D. Tweney, ‘Confirmation Bias in a Simulated Research Environment: An Experimental Study of Scientific Interest’, (1977) 29 Quarterly Journal of Experimental Psychology 85-95. 14 Hugo Mercier and Dan Sperber, The Enigma of Reason – A New Theory of Human Understanding (St Ives: Penguin Books 2018) 213, 218-219. 13

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world of formal processes that ritualize the right of entry into the legal world. Thus, in order to become relevant in the universe of the law, a social practice must have passed the unseizable instant where the magic happens, whereby it will be transnatured from a mere fact that the law does not care about into a binding legal rule that is all that the law cares about. But in the end, this is only the lawyer’s understanding of custom. And indeed, no other disciplinary field claims that traditions are legally binding. Why would they? That is not what anthropologists, sociologists, historians, or psychologists are concerned with when they engage with tradition. They lay no claim on legal bindingness. Some scholars even make the conceptual effort of distinguishing tradition from custom.15 But is this enough to conclude that tradition is not binding? Could it not be binding in a different way? Most legal scholars and practitioners would quite certainly have some difficulty with the suggestion underlying these questions, for the only kind of bindingness they know and accept as relevant is legal. Surely some would acknowledge a sense of moral or ethical obligation as they would also admit the reality of political, economic, or social constraints. But the only “true” bindingness in their book is legal. Since that bindingness is determined by the formal processes that are typically represented as being constitutive of the world of the law, the only traditions they care about are the ones that “made it.” And those that made it are simply not traditions anymore, at least not in and by the law: they are customary rules. In short, even where it comes closest, international law in its formal tenets does not know or even graze upon tradition—or so we would think, if we stick to handling that which we were trained to handle. The purpose of these developments, through Sects. 1–3, is neither to gratuitously ridicule the French formal constraints in writing nor to build an (unconvincing) analogy between legal custom and tradition. It is solely to shed light on the paradox that we are rigidly trained toward defining the concepts and issues we are dealing with, but that this specific concept and issue—tradition—lies completely outside the perceptions of our disciplinary field, when the law is reduced to its classical formal tenets. Our disciplinary vocabulary and methodologies allow no room for it, and it is thus bound to remain outside—even outside our thinking. This is why international lawyers are probably the worst people to ask to reflect on the international law tradition in their respective national systems, the worst in the sense that they are the least qualified for doing so in any sound way. Our legal education leaves us utterly unequipped to reflect on our tradition, which ultimately has very little to do with the law in itself. Unfortunately, international lawyers are also the only people who can be asked to reflect on their traditions as such a reflection requires quite a deep familiarity with the object of said traditions.

15 See for instance Eric Hobsbawm, ‘Inventing Traditions’, in Eric Hobsbawm and Terence Ranger (eds), The Invention of Tradition (Cambridge: CUP 1983) 2-3.

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4 Choices and Identity, and Choices of Identity In the end, this leaves international lawyers with but two choices. (1) They can focus on what they know best (international law and their national system) and not care so much about what they have not been trained to know and think about (tradition), or (2) they can care a great deal about what they have not been trained in and yet are asked to engage with (tradition) and thus use it to look at what they do know (international law and their national system) in a different light. Admittedly, this might sound confusing. Following the first avenue, on the first hand, would lead to any number of accounts of national practices of international law and of a variety of scholarly theories; obviously, as pointed out above, the narrator will thereby narrate only his representation of tradition—basically what they assume tradition is but without having thoroughly investigated it. The second avenue, on the other hand, would call for inquiries into disciplinary fields outside the law in order to get a firmer grasp on the concept of tradition; the possible outcome of such venture might be that the resulting account of international law traditions in their national system is drastically different from what the first would be since their understanding of international law itself and of how it operates might have been altered. Considering the previous observations, it should be no surprise that this paper will attempt the second. This choice is grounded in the strong conviction that any intellectually honest and thorough reflection on traditions of international law needs to draw from those other disciplinary fields that are most acquainted with tradition, which actually study it and conceptually engage with it, such as anthropology, ethnology, sociology, history, philosophy, psychology, cognitive science, etc. Obviously, I am no historian, no anthropologist, and no cognitive scientist. I am an international lawyer. “International lawyer,” “historian,” “sociologist” may appear to be mere professional etiquettes, and as such they seem benign. In fact, we use them on numerous benign occasions in our everyday lives. But they are also much more than that. They are branding tools, disciplinary categories used as identity markers. Introducing myself to others as an international lawyer defines my identity to them as an international lawyer. While this could seem harmless and even trivial, it has less harmless implications. One of them is that we are expected to stick to our identity. In the professional context, where our disciplinary identity is associated with and defined by a specific field, we are expected to stick to that field, to its notions and concepts, to its methodologies and fundamental tenets. This might also seem harmless (although is it really?), but in many a situation it will create a catch-22: how can we stick to our disciplinary field, its theories and methodologies; how can we be expected to stick to them; and, much worse, how can we deliberately choose to do so when the primary object we are asked to address lies beyond the instituted boundaries of our own field? We obviously cannot reinvent our identity, or put differently, we cannot reidentify ourselves. But, short of reinventing our identity, we can expand it. We can choose how to make use of it. Nothing prevents us from reading and researching what scholars from other disciplinary fields have researched and written on tradition.

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Nothing prevents us from processing these thoughts and analyses into our own background and identity, including into the fraction of it that is legal and academic. Nothing prevents us from testing how this knowledge imported from other fields affects our understanding of our own field, of its players, and of the rules they play by. And in doing so, nothing should prevent us from realizing that, as members of a social group engaging with international law in a given country, we ourselves are included in the object of the inquiry.16 Ultimately, by engaging in such reflection— including a fragment of self-reflection—it is very likely that we would end up becoming aware of just how much every one of us is a product of a number of national traditions and is more or less knowingly subjected to their rules. Undertaking such a journey might be quite unsettling and even disturbing, for we are trained to deal with legal objects in a supposedly scientific, technical, and neutral manner and are hardly used (nor inclined) to look at ourselves as part of the study. But this is beside the point. The point is that there is no obstacle to doing all this. The only thing that can happen—but it will happen only ex post—is punishment, as opposed to prevention. In the opening of his inaugural lecture at the Collège de France in 1970, Michel Foucault gave voice to Desire and the Institution in a beautifully articulated personification by which he opposed the fear of autonomous and inaugural discourse and the comfort ever provided by the Institution, which makes sure that discourse is always securely couched into its frames and thereby vests it with authority. Foucault’s “Desire” says: “I should not like to have to enter this risky order of discourse; I should not like to be involved in its peremptoriness and decisiveness; I should like it to be all around me like a calm, deep transparence, infinitely open, where others would emerge one by one; I should only have to let myself be carried, within it and by it, like a happy wreck.” The institution replies: “You should not be afraid of beginnings; we are all here in order to show you that discourse belongs to the order of laws, that we have long been looking after its appearances; that a place has been made ready for it, a place which honours it but disarms it; and that if discourse may sometimes have power, nevertheless it is from us and us alone that it gets it.”17

The power distribution described here, incidentally, touches upon one of the traditions that will be exposed later in this paper. The form of punishment that can occur (or disarmament, to stay within the terms of the Foucauldian personification) is

Bourdieu calls this “participant objectivation”, which refers to the process of “objectivation of the subject of objectivation, of the analyzing subject, in short, of the researcher himself”, in Pierre Bourdieu, ‘L’objectivation participante’, (2003) 150 Actes de la recherche en sciences sociales 43. This process leads to reflexivity, which calls for the scholar to integrate into the parameters of his analysis every single element derived both from his belonging to a scientific field (with its specific traditions, ways of thinking, issues, shared truths, etc.), and from his individual position in the field, with its specific interests that might influence more or less unconsciously the scientific choices he makes. See ibid. at 47; also see Pierre Bourdieu, Science de la science et réflexivité (Paris: Seuil 2001). 17 Michel Foucault, ‘The Order of Discourse’ in Robert Young (ed.), Untying the Text: A PostStructuralist Reader (Boston/London/Henley: Routledge 1981) 51-52. 16

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most likely to be disqualification. This paper can be rejected or discredited by members of my own field on the categorical ground that “this is not law.” This sentence is widely known and uttered and by no means a monopoly of legal academia. I do not challenge it. This paper will not be law, at least not if law is understood in its usual formal and narrow sense. But it is about the law. It is about its culture, about those who make law, practice it, and think about it. That alone should be enough. There is simply no argument to be made how writing about a field can be outside the field.

5 Cross-Investigating “the Others’” Tradition While tradition may not be an operative word in our disciplinary field, it is at the heart of a number of other fields that engage with culture and society. Inquiring into their approaches when we think about our own lawyers’ tradition is not only useful but also necessary. In doing so, I will proceed by identifying the disciplinary categories. This might seem to be at odds with the earlier criticism of disciplines as professional identity markers, but it has a distinct purpose for this study: it will reveal that although various disciplines speak about tradition in their own terms, different from others, and although they approach it from different vantage points, they nevertheless more often than not say exactly the same, even when they express it quite differently. This in itself is of interest for us when approaching the subject, for it forcefully reveals how much we can draw from other disciplines’ research. Arguing that methodologies and focuses are different is no valid argument to simply discard them. The starting observation is that research in all disciplines engaging with tradition, for a very long time, has been concerned mainly with the substance of traditions and has only more recently shifted attention to tradition’s modus operandi. This in turn is easily explained by the fact that tradition started to draw social theorists’ attention in the nineteenth century mainly in one of two respects: tradition was framed either as the distinguishing feature of certain small communities or as a form of resistance to change and thus coined as the foe of modernity. The latter facet is particularly developed in philosophy, obviously with very different intellectual approaches. To Eric Weil, for instance, traditions are ways of thinking or of doing things that are specific to a social group, whose members nevertheless feel that these distinct ways are entirely natural.18 Edmund Burke, on the other hand, placed the focus on something completely different. Of course, he was writing at a very different time and also from a very different political background. Burke notoriously rejected the idea of tabula rasa and insisted on the duty of

Eric Weil, ‘Tradition et traditionalisme’, in Eric Weil, Essais et conférences, vol. 2 (Paris: Plon 1971) 16 (this article is translated from an earlier paper in English, ‘Tradition and Traditionalism’, published in (1953) II Confluence 106-116, but to which I have not had access). 18

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a society to preserve its traditions.19 His belief in a providential design made him accept and even support the idea that traditions need to adapt and evolve; nonetheless, his conservative philosophy clearly boils down to an essential antagonism between tradition and reason, and between stability of tradition and conflict. Although it still has a certain foothold, the Burkean approach is radically rejected by others. Alasdair MacIntyre most forcefully challenged the ideological use of the concept of tradition made by conservative political theorists. His approach in fact stands in radical opposition to rational and positivist theories: he altogether rejects the claim of axiomatic neutrality, the Cartesian tenet of self-evident and unquestionable truths, as well as Hegelian rationality.20 In his own words, “when a tradition becomes Burkean, it is always dying or dead.”21 While historians are interested in the same facet of tradition, their “observers’” perspective obviously changes the focus. In a remarkable introduction to a book titled The Invention of Tradition, Eric Hobsbawm explains the notion of “invented tradition” to encompass both constructed and formally instituted traditions, and those that emerge less formally yet quickly achieve to establish themselves.22 Invented traditions, according to Hobsbawm, are “a set of practices, normally governed by overtly or tacitly accepted rules and of a ritual or symbolic nature, which seek to inculcate certain values and norms of behaviour by repetition, which automatically implies continuity with the past.”23 The crucial point is that the continuity of tradition is neither spontaneous nor natural. In fact, it is entirely crafted.24 Therefore, what historians engaging with tradition are most interested in is the tension it reveals between change and stability, between the pull of evolution and the tendency of society to preserve some of its structures as unchallengeable invariables. One could even argue that tradition does not only reveal this tension: it might well be the essential hinge between continuity and change. The fundamentally intertwined relation between tradition and modernity was aptly expressed by Gérard Lenclud when he made a very interesting analogy with memory: he reminds us that in order to be able to forget something, we first must have known and experienced it. He observes that the more a society is capable of reproducing its past, the more it

In his immediate bestseller on the ongoing French Revolution, Burke wrote that “by preserving the method of nature in the conduct of the state, in what we improve we are never wholly new; in what we retain we are never wholly obsolete”. See Edmund Burke, Reflections on the French Revolution (first published 1790; London: J. M. Dent & Sons 1910) 32 (reprint Oxford: OUP 1993). 20 See for instance Alisdair MacIntyre, ‘Epistemological Crises, Dramatic Narrative, and the Philosophy of Science’, (1977) 60 The Monist (Historicism and Epistemology) 453-472; After Virtue – A Study of Moral Theory (Notre Dame: University of Notre Dame Press 1981); Which Justice? Which Rationality? (Notre Dame: University of Notre Dame Press 1988). 21 Ibid., After Virtue, 222. 22 Eric Hobsbawm, ‘Inventing Traditions’ (n 15) 1. 23 Ibid. 24 Ibid., 2. 19

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is capable of initiating change; conversely, the less a society addresses the preservation of its past, the less it is inclined to even imagine and project the future.25 This introduces yet another interesting aspect into the meaning of what we are talking about when we speak of tradition. But then again, Lenclud is an ethnologist, and ethnologists and more generally anthropologists have their own disciplinary field, their own matters of interest, and their own “scholastic biases,” and yet their differences within their field. To give only a few examples of these differences, Edward Burnett Tylor, founding father of cultural anthropology, is reported to have written that tradition is merely “a past knowledge that has accidentally survived.”26 Marcel Mauss’ approach is centered entirely on transmission as the constitutive essence of tradition. Focusing on the specific issue of technique as requiring body movements and the “system” they constitute, he holds that our movements are not natural at all but an entirely social construct, through transmission and imitation of that what has been deemed technically most efficient. On this background, he submits that tradition is simply what is passed on and that, more importantly, tradition is the essential requisite for any technique to be first developed and then transmitted.27 In a similar vein yet broader in approach, to Jean Pouillon tradition is what survives from the past in the present, where it is transmitted, remains operative, and is accepted by those to whom it is passed on to, who in turn will pass it on to future generations.28 In many ways, this definition comes quite close to that of sociologists. To André Béteille, for instance, tradition is the connector that links the past and the present. Yet this substantive-temporal element is not enough for a social practice or behavior or idea to qualify as traditional: a tradition can be said to exist “only when a positive value is placed on the past as something to serve as a guide to everyday thought and

Gérard Lenclud, ‘La tradition n’est plus ce qu’elle était. . . Sur les notions de tradition et de société traditionnelle en ethnologie’, (1987) 9 Terrain – Anthropologie et sciences humaines 12. 26 Unfortunately, I was unable to track this quote, which is cited by Christopher B. Steiner, ‘The Tradition of African Art: Reflections on the Social Life of a Subject’ in Mark Salber Phillips and Gordon Schochet (eds), Questions of Tradition (Toronto: University of Toronto Press 2004) 92, but who misreferenced the quote. Admittedly, Tylor’s approach does not stand on its own but is part of his theory of “survivals”: according to him, irrational beliefs and customs are the remnants of practices that, earlier in time, were rational. He draws a distinction between those that have preserved the same sense and function they had in the past, and those that, in the present, are no longer useful and are poorly integrated with contemporary social practices. These latter customs and beliefs are called “survivals”. See Edward Burnett Tylor, Primitive Culture (first published 1871; Cambridge: CUP 2010). 27 Marcel Mauss, ‘Les techniques du corps’, (1936) 32 Journal de Psychologie 271-293. 28 Jean Pouillon, ‘Tradition’ in Pierre Bonte and Michel Izard (eds), Dictionnaire de l’ethnologie et de l’anthropologie (Paris: Presses universitaires de France 1991) 710. See also, by the same author, ‘Tradition: transmission ou reconstruction’ in Jean Pouillon, Fétiches sans fétichisme (Paris: Maspero 1975) 155-173; and ‘Plus c’est la même chose, plus ça change’, (1977) 15 Nouvelle Revue de Psychanalyse 203-211. 25

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practice in the present” and where there are “actual links of filiation between the present exponents of ideas and practices and their forbearers.”29 Surely all these approaches raise issues and thoughts that appeal if not to our professionally trained identity as international lawyers at least to our intuitions as individuals. However, they all have in common the fact that, whatever is the disciplinary field or specific focus, they gravitate around the idea of a constitutive substance of tradition. By focusing on substance, they can largely escape the task of framing the very concept of tradition. This is particularly apparent in the work of scholars who, in lieu of definition, convincingly attempt to describe the change of perception regarding tradition. Nelson Graburn, for instance, in a paper titled “What Is Tradition?” traces the evolution of societies’ awareness of their own traditions, as well as the evolution of the understanding of what tradition is. He holds that, historically, tradition was “the name given to those cultural features which, in situations of change, were to be continued, to be handed on, thought about, preserved and not lost.”30 But Graburn suggests that tradition has become much more complex and subtle, as has the understanding of what it is. This, however, does in no way imply that there is a uniform and unified understanding among scholars of the very concept of tradition. In fact, Graburn himself steers clear from providing any univocal or even tentative definition. Olivier Morin, who authored an entire book on tradition and its transmission, for his part is satisfied with providing a rudimentary definition of tradition that, by his own admission, is “fuzzy.” This does not discomfit him in the least, and according to him this is even inevitable since traditions in themselves are “fuzzy objects.”31 This may feel frustrating to the reader when by education he is a lawyer: we are trained to handle (supposedly) precise definitions since they will determine whether or not a legal rule is applicable in a given situation, and we are professionally inclined to mistrust conceptual blurriness. The same approach, however, already appears more than ten years earlier, and much more explicitly. Lenclud observes that, in social sciences as in life in general, the frequency with which we use certain words is inversely proportional to the clarity of their meaning.32 “Tradition” in fact appears to be a prime example of ontological indeterminacy, even if such a statement might sound heretic or at least embarrassing to most legal scholars and practitioners. But in the end, after a thorough investigation of the notions of tradition and traditional societies (in the field of ethnology), the very title of Lenclud’s paper says it all—but nothing more: “tradition is not what it was anymore. . .” If tradition is not what it was anymore but if even those disciplines most deeply engaged with it cannot say precisely what it was before and cannot say either what it

André Béteille, ‘Science and Tradition: A Sociological Perspective’, (1998) 33 Economic and Political Weekly 529. 30 Nelson H. H. Graburn, ‘What Is Tradition?’, (2001) 24 Museum Anthropology 6. 31 Olivier Morin, How Traditions Live and Die (Oxford: OUP 2016) 4. This book is a translation of the French original version, published under the title Comment les traditions naissent et meurent (Paris: Odile Jacob 2011). 32 Gérard Lenclud, ‘La tradition n’est plus ce qu’elle était. . .’ (n 25) 1. 29

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is now, was this entire inquiry into other disciplinary fields useless? It certainly does not feel so, and maybe it takes an outsider’s look into these fields to be able to detect just how much they have in common, rather than being distracted, as insiders typically will be, by disciplinary quarrels. But the outsider can observe and assess: after all, they have no stakes in the game. And to them, these common features and links between approaches in other fields stand out as quite relevant for thinking as lawyers about our domestic international law traditions.

6 Windows and Mirrors: Tradition’s “Inside” and “Outside” While approaches may be different, at least three disciplinary fields raise an identical crucial point. In fact, philosophy, sociology, and anthropology all observe that the very institution of tradition per se, simply by being, shapes an inside and an outside. This is not different from the inclusion/exclusion phenomenon inherent to any social group and/or activity. And yet few are the scholars engaging with tradition who actually make that point. Weil writes that tradition molds us in such a way that it is impossible to contemplate the mold itself. Tradition is that which “goes without saying for those living within it.”33 The philosophical underpinning of his argument clearly draws from the distinction between self and other. As a result, he emphasizes that the fundamental meaning of a tradition lies in the other tradition, “that of the stranger, who gives me the mirror without which I couldn’t know my own face.”34 John Searle made the exact same point in an outburst against the discourse of crisis in academia, when he wrote that one cannot understand one’s own tradition as long as one does not see it in relation to the tradition of others.35 The awareness of an inside and an outside perspective to tradition seems particularly relevant when we examine international law scholarship. Interestingly, the French Society for International Law (SFDI), a few years ago, has undertaken the project “Gallery of International Lawyers,” which portrays dozens of francophone— not exclusively French—international lawyers.36 They are most varied, but the one thing they all have in common is that none of them are alive.37 When we think about

Eric Weil, ‘Tradition et traditionalisme’ (n 18) 9. Ibid. 35 John R. Searle, ‘The Storm Over the University’, The New York Review of Books, 6 December 1990, at . 36 At . 37 This, incidentally, is another French “tradition”: we tend to not directly refer to and quote the living. This might be a newer tradition, as scholarship of the end of the 19th and the beginning of the 20th century shows how much academics directly engaged with one another, sometimes in fierce yet generally courteous intellectual fights. Such direct engaging with one another’s work has almost completely vanished, and one could wonder whether this is a cause or a consequence of the overall non-confrontational, non-conflictual and of course supposedly non-violent self-representation of the academic community. 33 34

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our domestic international law tradition, the very idea of such a project by the SFDI is interesting and certainly revealing: obviously, it speaks from the “inside” perspective of the French international law tradition as it is institutionalized and incarnated by the academic society that gathers Francophone international lawyers. In this line of thought, while being dead is undoubtedly an objective state, one could wonder about the criteria according to which the international lawyers to be portrayed (as well as their “portraitists”) have been and are selected: reputation? prestige? influence? and if yes, then influence on what and/or whom? Reading through these portraits provides an answer at least to the first question: all biographical notes have in common to highlight the crucial role that these international lawyers have played in the development of French international law scholarship, in academia, in politics or diplomacy, or in the practice of international law. As such, quite evidently, this gallery is a strong testimony of what the “inside” of the French international law membership considers to be part of itself and of its tradition. This is why it seemed a particularly interesting vantage point to adopt here, on the backdrop of the inside/ outside to tradition emphasized by other disciplinary fields. Fully aware that any selection would impose my own subjective view of the French international lawyers who I think to be representative of the French tradition (quite likely according to criteria I am not even aware of), I have selected as many as reasonably possible in order to give an overview of certain trends of thought in past scholarship. I will definitely not attempt to introduce them according to any sort of theoretical classification as this would only step deeper into the trap of subjective representations. Furthermore, Emmanuelle Jouannet has already published a voluminous article on French international law scholarship, which gives her account of such theoretical trends.38 Presenting them in alphabetical order would certainly be objective, but it would make no sense at all intellectually. Instead, the following overview will be chronological, by birth year. This gives an interesting insight into how international law was thought of at specific times in history and also reveals symmetries or asymmetries between contemporaries. Most importantly, the reader should note that, for the purpose of this section, the scholarship presented here is (almost) less relevant than the representation that contemporary French scholarship gives of it. Such representation is indeed evidence of how the “inside” narrates its own tradition. Later on, this narrative will in turn allow us to explore the transmission processes by which tradition is kept alive. The first author to be selected from the SFDI’s Gallery is unquestionably Jean Bodin (1529–1596). Although some would object by saying that he is not an international lawyer, that he never even wrote anything at all on international law

Emmanuelle Jouannet, ‘Regards sur un siècle de doctrine française du droit international’, (2000) 46 AFDI 1-57. An English version (though not an exact translation) of her paper was published under the title ‘A Century of French International Law Scholarship’, (2009) 61 MaineLRev 83-132. See also ‘Les visions française et américaine du droit international: cultures juridiques et droit international’ in SFDI, Droit international et diversité des cultures juridiques (Paris: Pedone 2008) 43-90 (also published in English: ‘French and American Perspectives on International Law: Legal Cultures and International Law’, (2006) 58 MaineLRev 291-336). 38

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specifically (but then again in the sixteenth century?), he has nevertheless become a foundational reference—and remains so to this day, even unconsciously. In fact, as the portrait’s author wrote, Bodin contributed to the “origin of our modern international law,” quite simply “because he is the inventor of the modern concept of sovereignty (. . .).”39 He adds, revealingly, that sovereignty is the one concept quintessential to international law, for international law could not exist without it (!). Although some French scholars might haggle over the definition of sovereignty (for instance, Bodin’s concept of sovereignty as summa potestas is obviously not adequate as such in the international legal order) and might also introduce nuances into their views, it can be submitted that, overall and generally speaking, this expresses the representation of international law that is still dominant in France, from international law scholarship to national courts and tribunals:40 international law, quite simply put, (r)evolves around State sovereignty. We then need to jump ahead almost one century and a half to meet the next scholar, Louis Renault (1843–1918), who undoubtedly qualifies as the first genuine and full-fledged French academic “international lawyer.” It is particularly noteworthy that, according to his portrait’s author (and many more), Renault is “the founding father of the French international law tradition.”41 These words carry weight, to the extent that the contemporary “inside” identifies Renault as the creator of the tradition it lives by. Renault never wrote a systematic textbook or treatise on international law42 and yet has had an immense influence on how international law is thought and practiced in France—or rather practiced and thought, in that order, for the main tenet of Renault’s approach was a practical one: the lawyer’s function is to “expound what is by pointing to what should be.”43 According to Emanuel Castellarin, such reconciliation of lex lata with lex ferenda has the advantage of giving scholarship a practical utility but also diminishes its theoretical potential in the face of political power.44 The dominant positivism in Renault’s approach appears most clearly in his overall vision: international law is the law between States, States are sovereign equals, treaties in force are international law’s most relevant components,

Fabrice Bin, ‘Jean Bodin’, at . For Jean Bodin’s concept of sovereignty, see Les six livres de la République (Jacques du Puys 1576; new edition Paris: Fayard 1986). 40 For an analysis of how the French Constitutional Council (mis)understands sovereignty see Andrea Hamann, ‘Sur un sentiment de souveraineté’, (2018) 20-21 Jus Politicum (La jurisprudence du Conseil constitutionnel et les différentes branches du droit) 187-213 (also available at: ). 41 Emanuel Castellarin, ‘Louis Renault’, at . 42 As opposed to commercial law, on which he published a treatise in eight volumes. Most of his international law writings have been published in three volumes by Albert de Geouffre de La Pradelle, L’œuvre internationale de Louis Renault (1843-1918), in memoriam (Paris: Les Éditions internationales 1932). 43 Emanuel Castellarin, ‘Louis Renault’ (n 41). 44 Ibid. 39

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individuals are merely objects of international law. Interestingly, when reduced to these most basic tenets, one could wonder what makes the French tradition of international law, as supposedly fathered by Renault, so distinctly French. The exact same tenets can be found in the scholarship that other countries claim as the fathers of their own international law tradition. This, in turn, should be enough to make us reflect on the specific value we attribute to our own international law narratives. While one could therefore challenge the distinctly French character of the tradition initiated by Renault, it is unquestionably true that he has had a tremendous influence on French international law scholarship (and practice), both through “filiation” and by giving French international scholars the most important means of expression: a law review. This leads us to Antoine Pillet (1857–1926) and Paul Fauchille (1858–1926). At the beginning of their careers, both gravitated around Renault, and both were entrusted by him to be joint editors-in-chief of his newly founded Revue générale de droit international public. Pillet, however, soon distanced himself both from Renault and from public international law altogether. He was indeed profoundly dissatisfied with the international law that originated from the 1899 and 1907 Hague Conferences, mistrusted treaties in general, and looked upon the League of Nations with deep pessimism.45 Instead, he turned to private international law, and it can be said without exaggeration that he founded the discipline in France.46 Fauchille, on the other hand, remained loyal to Renault’s intellectual leadership, although he turned away from an academic career and became a practicing lawyer. However, soon dissatisfied by his work, he published continuously on various issues of international law. His main work remains the textbook originally published by Henry Bonfils in 1894:47 following Renault’s advice, he published an updated edition in 1898, and seven more were to follow until 1926, each of them being appropriated more and more by Fauchille.48 Since “filiation” is of particular importance as far as tradition is concerned, it is noteworthy that this textbook was later bequeathed by Fauchille to Marcel Sibert, who was no other than his son-in-law.

45

See for instance Antoine Pillet, Les Conférences de La Haye du 29 juillet 1899 et du 18 octobre 1907 – Etude juridique et critique (Paris: Pedone 1918); De l’idée d’une Société des Nations (Paris: Marcel Rivière & Cie 1919); and Le Traité de paix de Versailles – Conférences faites au Collège libre des sciences sociales (Paris: Marcel Rivière & Cie 1920). 46 See his seminal work Principes de droit international privé (Paris: Pedone 1903). 47 Henry Bonfils, Manuel de droit international public (Droit des gens) (Paris: Rousseau & Cie 1894). The narrative in the author’s preface to his textbook is quite remarkable: “may this Textbook convince those who will honor it by reading it that in the constant evolution of International law, France, despite a few momentary missteps, has always been the champion of justice and humanity, and may this Textbook thus provide its readers with new reasons to respect and to cherish their Fatherland”, at viii. 48 Claudine Moutardier, ‘Paul Fauchille’, at . See Fauchille’s Manuel de droit international, 8th entirely new edn of the Manuel de droit international public by Henry Bonfils (Paris: Rousseau & Cie 1920).

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A few years down the road, we meet four other disciples of Renault, although they unequally remained faithful to their master’s vision of international law.49 Louis-Erasme Le Fur (1870–1943) in particular vividly took on the dominant scholarship and devoted almost his entire work to the systematic deconstruction of the traditional positivist approach to international law, which he called a “philosophy of the short-sighted.”50 Although he was strongly influenced by the leading German scholars who theorized the Federal State,51 which ricochets in his definition of sovereignty initially in line with that of Paul Laband (as later taken over and developed by Georg Jellinek), he adds a distinctive element: the will of the State is limited by the “superior principle of the law, and by the collective finality the law is intended to achieve.”52 Le Fur vehemently criticized the subjectivism of the dominant positivist approach and strongly argued for the objectivism of natural law; this, in his view, can be the only true foundation of international law. However, as Edoardo Stoppioni perceptively reminds us, Le Fur was also deeply religious, which certainly influenced his strong call for a “return to tradition.”53 His powerful and progressively blinding conservatism ultimately led him to unfortunate expressions of support to Franco and the Nazi regime, as the saviors of Christian tradition.54 His almost exact contemporary is Albert de Geouffre de La Pradelle (1871–1955), who inherited Renault’s chair of international law at the Paris Law Faculty in 1918. He, too, showed a certain inclination toward natural law,55 but it is mainly his documentary and historical approach that made his reputation. He also notably favored researching on international law scholars and scholarship, and one can incidentally reflect on how such research might have contributed to the transmission processes of tradition.56 Along the same lines of transmission, it is also noteworthy that La Pradelle, together with Fauchille and Alejandro Alvarez, founded 49 The terms “master” and “disciple” should not be taken too seriously: while I have indeed often heard colleagues refer to their “master” when speaking about their former PhD supervisor, the word “disciple” used here doesn’t necessarily imply an intellectual filiation or dependence: international law academics were far fewer than nowadays, consequently students aspiring to undertake a PhD therefore had less choice regarding their future “master” – and most of these international law “masters” were at the Paris Law Faculty. 50 Cited by Edoardo Stoppioni, ‘Louis-Erasme Le Fur’, at . 51 See his monumental dissertation Etat fédéral et confédération d’Etats (Paris: Marchal et Billard 1896, reprint Paris: Editions Panthéon-Assas 2000), which remains a reference to this day. 52 Ibid., 443. 53 Edoardo Stoppioni, ‘Louis-Erasme Le Fur’ (n 49). 54 Ibid. 55 See for instance his late work ‘La Place de l’homme dans la construction du droit international’, (1948) 1 Current Legal Problems 140-151. 56 Albert de Geouffre de La Pradelle, Maîtres et doctrines du droit des gens: Cours professé à la Faculté de droit de Paris (Paris: Les Editions internationales 1939, 2nd edn 1950). See also ‘L’Institut des Hautes Études Internationales et l’enseignement du droit des gens’ (co-authored with Alejandro Alvarez), (1939) 46 RGDIP 666-669.

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the Institut des Hautes Etudes Internationales. Inaugurated in 1921, the Institut was intended to be a school of international law for diplomats, journalists, and the military. Today, it is one of several research and teaching centers of the University Paris 2 and is about to celebrate its hundredth birthday. But the one name among Renault’s disciples that still rings most loudly with every French international lawyer is certainly Jules Basdevant. His unyielding positivist approach of international law is well recorded in his two courses at The Hague Academy in 1926 and 1936.57 It remains exemplary to many contemporary international law scholars as being—in the portrait’s author’s words—“realistic” and “pragmatic”58 and rigorously distinguishing between what the law is and what one aspires for it to be.59 What might be less known outside French academia is his moral character, equally unyielding. Most strongly disapproving of the Vichy regime, Basdevant did not hesitate to resign from his functions at the legal service of the Ministry of Foreign Affairs. His letter of resignation became instantly famous, and he paid a high price for it: he was forced by the (official) government to retire from his academic position at the Paris Law Faculty, which he had held for almost 20 years, and was forbidden to teach in Paris. He regained his position only after the fall of the Vichy regime. As the sole exception to this chronological presentation, one should also mention here another of Renault’s disciples, Gilbert Gidel (1880–1958), whom Georges Scelle later distinguished as “one of Renault’s favorite disciples.”60 While Gidel may not have left an indelible mark on international law theory,61 he became and remains famous for his monumental work on the law of the sea.62 In the words of Niki Aloupi, Gidel’s scholarship unquestionably reflects his “rigorous spirit of passionate positivism.”63 This ends the immediate Renault era as their almost exact contemporary is Georges Scelle, who turned in an altogether different direction. Strongly inspired by Léon Duguit and Emile Durkheim, Scelle indeed founded a new approach to

57 Jules Basdevant, ‘La conclusion et la rédaction des traités et des actes diplomatiques autres que les traités’, (1926) 15 Hague Academy of International Law Collected Courses 535-667; ‘Règles générales du droit de la Paix’, (1936) 58 Hague Academy of International Law Collected Courses 471-715. 58 François-Xavier Saluden, ‘Jules Basdevant’, at . 59 For a poignant homage to Basdevant, see Charles Chaumont, ‘Jules Basdevant’, (1967) 13 AFDI 1-3. 60 Georges Scelle, ‘In Memoriam – Le professeur Gilbert Gidel’, (1958) 4 AFDI 1. 61 There is, however, his Hague Course on the theory of fundamental rights of the State: ‘Droits et devoirs des Nations – La théorie classique des droits fondamentaux des Etats’, (1925) 10 Hague Academy of International Law Collected Courses 537-600. 62 Gilbert Gidel, Le Droit international public de la Mer: le temps de paix, vol. I: Introduction – La haute mer; vol. II: Les eaux intérieures; vol. III: La mer territoriale et la zone contigüe (Paris: Mellotée 1932-1934). 63 Niki Aloupi, ‘Gilbert Gidel’, at .

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international law: sociological objectivism. It is noteworthy, in terms of filiation, that he wrote his dissertation under the supervision of Pillet, who, as we saw, struggled with international law and was deeply disappointed by its projects. But Scelle’s vision seems to have turned Pillet’s pessimism into energy and new ways of thinking international law: he radically rejected State sovereignty as an absolute, and, more crucially and also revolutionary concept at the time, he placed the individual at the very heart of international law as its primary subject.64 Contrary to the dominant scholarship, such an approach was grounded in a monist vision of the legal order (which, incidentally, later influenced the making of the 1946 French Constitution). Almost ten years ahead, we meet René Cassin (1887–1976), who came from a private law academic background and taught private law before turning to human rights and famously becoming one of the drafters of the UN Declaration of Human Rights of 1948. Much like Basdevant, his moral character led him to make powerful choices against the Vichy regime, and he thus followed De Gaulle to London in 1940. His scholarship is not strictly speaking “Scellian,” although his defense of human rights inevitably brings the individual to the center stage of international law and draws from an approach limiting State sovereignty.65 Louis Cavaré (1893–1964) also made an atypical academic journey as he came from an administrative law academic background. His dissertation was written under the supervision of Maurice Hauriou—famous opponent of Duguit—who, as we just saw, influenced Scelle. Cavaré’s exclusive focus is on positive law, observing social facts and analyzing international case law. While he rejected the idea that international lawmaking is exclusively dependent on State will, he remained strongly influenced by his administrative law education: his theoretical approach to normativity in international law entirely hinges on the existence of international courts and tribunals. According to his portrait’s author, Cavaré’s treatise, revealingly called Positive Public International Law,66 remains to this day “a reference in its kind.”67 An even more voluminous and celebrated treatise is that, in six volumes, by Charles Rousseau (1906–1993).68 Rousseau was a disciple of Basdevant, and his See Georges Scelle, Précis de droit des gens – Principes et systématique, vol. I (Paris: Sirey 1932); Précis de droit des gens – Principes et systématique, vol. II (Paris: Sirey 1934). 65 See for instance René Cassin, ‘La déclaration universelle et la mise en œuvre des droits de l’homme’, (1951) 79 Hague Academy of International Law Collected Courses 237-367; ‘Les droits de l’homme’, (1974) 140 Hague Academy of International Law Collected Courses 321-331. 66 Louis Cavaré, Le droit international public positif – Vol. I: La notion de droit international public. Structure de la société internationale (Paris: Pedone 1951, new editions in 1961 and 1967, 3rd edn updated by Jean-Pierre Quéneudec); Vol. II: Les Modalités des relations juridiques internationals. Les compétences respectives des États (Paris: Pedone 1951, new editions in 1962 and 1969, 3rd edn updated by Jean-Pierre Quéneudec). 67 Loïc Aubanel Le Rhun, ‘Louis Cavaré’, at . 68 Charles Rousseau, Traité de droit international: Vol. I: Introduction – Sources (Paris: Sirey 1970); Vol. II: Les sujets de droit (Paris: Sirey 1974); Vol. III: Les compétences (Paris: Sirey 1977); Vol. IV: Les relations internationales (Paris: Sirey 1980); Vol. V: Les rapports conflictuels (Paris: Sirey 1983). The sixth volume was published separately, as it deals with international law in armed 64

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approach to international law was equally and resolutely positivist. However, in his general course in The Hague in 1948, he argued for a substitution of the concept of independence to that of sovereignty, on the backdrop of the ongoing decolonization process. Rousseau’s vision of international law is indirectly but quite clearly evidenced in his meticulous “column of international affairs” published in Revue générale, where he served as editor-in-chief from 1957 until his death. Suzanne Bastid (1906–1995), student of Gidel and daughter of Basdevant, is the first woman to have left a genuinely lasting mark on the French universe of international law. For more than one reason, although her scholarly work was not one of them, as pointed out by Alain Pellet: she only published one book, more than 50 years after her PhD thesis,69 although to this day the extensive and exhaustive course material of her various teachings in Paris remains famous (known in France as polycopiés, a substitute for textbooks). Pellet describes Bastid as a “pragmatic positivist” and emphasizes that she had no desire whatsoever to engage in theoretical inquiries and quarrels and even less to be a “shaper” of the international law system.70 One can wonder, however, to what extent Pellet’s appreciation is accurate. Systems, after all, are shaped not by mere thoughts but by the institutions within which thoughts can thrive (or will be quashed). In this regard, Bastid has unquestionably marked French international law academia and practice more than any other before or after her: not only did she supervise the dissertations of several generations of international lawyers, but, more crucially, she initiated the creation both of the French yearbook of international law in 1955 and, in 1967, of the French Society for International Law. How institutions operate to preserve and transmit traditions and to mainstream discourse will be addressed later (Sect. 8). At this stage, it suffices to keep in mind Foucault’s personification of the Institution as being the ultimate purveyor of discursive authority. One of Bastid’s immediate contemporaries is André Gros (1908–2004), who as a scholar marked legal thought by his dissertation on raison d’Etat,71 which is still cited today. His international law vision is already apparent in this early work, in which he argued for a new international law, which should be the law of individuals and not of States.72 Most of his approach and views on international law, however, will be expressed in his abundant and high-profile activities as a practitioner, a point to which we will get later (Sects. 8 and 9).

conflicts as opposed to the first five on peacetime international law: Le droit des conflits armés (Paris: Pedone 1983). A shorter textbook also preceded the treatise in the 50s: Droit international public approfondi (Paris: Dalloz 1958). This textbook has known an immense success: it was published for eleven editions and, very notably, also translated into Spanish (1966), Japanese (1968), Iranian (1971), and Portuguese (1972). 69 Suzanne Bastid, Les traités dans la vie internationale: conclusion et effets (Paris: Economica 1985). 70 Alain Pellet, ‘Suzanne Bastid’, at . 71 André Gros, Survivance de la raison d’Etat (Paris: Dalloz 1932). 72 Ibid., 375.

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Paul Reuter (1911–1990), on the other hand, although he too was intensely engaged in practice, published extensively on international law, although mainly on topical issues.73 Robert Kolb emphasized Reuter’s “love for the ‘small,’”74 the detail. Except in his textbook and his general course at The Hague Academy, he has never exposed a systematic vision of international law nor an inclination toward a specific trend of thought. However, one can easily detect that there is one, or rather an approach to international law, rooted in his deep conviction that the law is essentially a practical exercise and not grounds for theoretical inquiries.75 In this context of academic contemporaries (who also worked closely together in practice, in particular for the Ministry of Foreign Affairs), how very different does Charles Chaumont (1913–2001) stand out. His research and writings are famous throughout the entire international law scholarship community, and therefore a few paintbrushes will suffice. All the main tenets of his vision are contained in his general course at The Hague Academy,76 which is qualified by Jouannet as “the foundational moment of a new trend in international law scholarship,”77 firmly grounded in dialectic methodology (which Chaumont himself did not necessarily associate with Marxism, although he was evidently and strongly inclined toward Marxist theory): placing social contradictions at the center stage of international law, highlighting the people as a historical reality, challenging the traditional centrality of State will as the foundation of international law and instead theorizing the people as international law’s creative force, altogether debunking the myths of positive law, and vehemently fighting positivist formalism in order to inverse the primacy of appearances over reality. Interestingly, although many if not most speak of Chaumont with some form of awe and obvious enthusiasm, especially those who have had the opportunity to listen to his courses or take part in his famous Reims Meetings (Rencontres de Reims) held from 1973 until 1989, Chaumont’s approach has not imprinted French international law scholarship at all. His work seems to remain a theoretical “freak phenomenon” in mainstream French scholarship: people remember and speak of it with respect and even a form of national proprietary pride,

See the voluminous (yet selective) bibliography provided in Jénya Grigorova, ‘Paul Reuter’, at . 74 Robert Kolb, Les cours généraux de droit international public de l’Académie de la Haye (Bruxelles: Bruylant/Editions de l’Université de Bruxelles 2003) 368. 75 This appears most clearly in the poignant and quite personal homage to Reuter by one of his former pupils, Jean Combacau (who, although he would certainly challenge the assertion, has himself powerfully influenced contemporary French international law academia for several generations, to the extent that many scholars, more or less rightly, claim a more a less direct filiation): Jean Combacau, ‘Paul Reuter, le juriste’, (1989) 35 AFDI VII-XIX. See also Jénya Grigorova, ‘Paul Reuter’ (n 73). 76 Charles Chaumont, ‘Cours général de droit international public’, (1970) 129 Hague Academy of International Law Collected Courses 335-527. 77 Emmanuelle Jouannet, ‘La pensée juridique de Charles Chaumont’, (2004) 1 RBDI 259-289. 73

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yet all cautiously distance themselves from it.78 The only contemporary scholar who unblushingly claims her direct filiation from Chaumont is Monique ChemillierGendreau. René-Jean Dupuy (1918–1997) is only a few years younger and a disciple of Georges Scelle. According to the portrait’s author, Dupuy’s vision of international law could be resumed in but two words: community and humanity.79 The first is the exclusive topic of his course at The Hague Academy in 1979,80 while the second is later developed as the primary subject of the international community.81 In terms of influence and tradition, it is notable that the European Journal of International Law dedicated an entire homage volume to René-Jean-Dupuy, revealingly titled “The European Tradition in International Law: René-Jean Dupuy.”82 His almost exact contemporary is Guy Ladreit de Lacharrière (1919–1987), who was not an academic but nevertheless importantly contributed to French international law scholarship. His numerous political and diplomatic functions (all except one within the Ministry of Foreign Affairs) have entirely shaped his writings and vision of international law: from issues of development to the law of the sea, his works “mirror the evolutions of his career, the latter being constantly reflected in the former.”83 Lacharrière’s major and most systematic work, a reference to this day, is his La politique juridique extérieure published in 1983, heavily drawn from his experience as a diplomat.84 The portrait’s author unhesitatingly qualifies Lacharrière

78 See for instance two contemporary scholars from Chaumont’s very own university: Jean-Denis Mouton and Batyah Sierpinski, ‘La pensée juridique de Charles Chaumont’, (2015) 35 Civitas Europa 197-223. See also Alain Pellet, ‘Discours et réalité du droit international – Reims: apport et limite d’une méthode’ in Réalités du droit international contemporain, Actes de la huitième Rencontre de Reims (Reims: CERI 1990) 5-19. 79 Arnaud de Nanteuil, ‘René-Jean Dupuy’, at . 80 See also René-Jean Dupuy, La communauté internationale entre mythe et histoire (Paris: Economica 1986); and Dialectique du droit international – Souveraineté des États, communauté internationale et droits de l’humanité (Paris: Pedone 1999). 81 See for instance René-Jean Dupuy, L’Humanité dans l’imaginaire des nations (Paris: Julliard 1991); ‘L’émergence de l’humanité’ in Federico Mayor Amicorum Liber (Bruxelles: Bruylant 1995) 811-819. 82 With contributions by his son Pierre-Marie Dupuy, Julien Cantegreil, Evelyne Lagrange, and Alix Toublanc, in (2011) 22 EJIL. 83 Julien Cazala, ‘Guy Ladreit de Lacharrière’, at . Also see the extensive bibliography provided by Cazala. 84 Guy de Lacharrière, La politique juridique extérieure (Paris: IFRI/Economica 1983). It is an evident testimony to its influence that many renowned French international lawyers have written on this piece of scholarship: see Denis Alland, ‘Quelques réflexions sur la notion de politique juridique de l’État – Retour sur La politique juridique extérieure’, (2012) 13 Annuaire français de relations internationales 555-563; Julien Cazala, ‘Retour sur un classique: Guy de Lacharrière, La politique juridique extérieure’, (2013) 117 RGDIP 411-416; Jean Combacau, ‘Science du droit et politique juridique dans l’enseignement du droit international – À propos de Guy de Lacharrière, ‘La politique juridique extérieure”, (1984) 88 RGDIP 980-989; Alain Pellet, ‘Le Sage, le Prince et le Savant (A propos de ‘La politique juridique extérieure’ de Guy de Lacharrière)’, (1985) 112 Journal du droit international 407-414.

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as a voluntarist positivist yet emphasizes that this theoretical approach is the product not of a scholarly dogmatism but of his practical observation that, to quote another author, “if States are sovereign, one cannot do as if they were not.”85 Michel Virally (1922–1989) is maybe the most international among French international law academics: he was successively assistant professor in Strasbourg, research fellow at Columbia University in New York, professor at the Graduate Institute in Geneva, and finally professor in Paris for several decades. Although quite clearly tinted by positivism and favoring empirical observations,86 his vision approaches international law as an evolving substance. One of his most celebrated writings, quoted by Anne-Laure Chaumette, submits that “the legal order is justified by its necessity, from which it draws its validity.”87 While Virally is remembered by French scholars as always remindful of the crucial relationship between law and politics, they also revealingly insist on his “resolute distinction (. . .) between lex lata and lex ferenda, law and non-law.”88 His firm positions at the Institut de Droit international are often referred to, for instance, when he resolutely held that an obligation either exists or does not exist. This clear-cut distinction, as Virally himself wrote, is “an acquis of legal thought that cannot be challenged.”89 With this in mind, it is interesting that the last scholar to be mentioned here is to be remembered in particular for his writings on what he famously coined as the “relative normativity of international law” and his warnings against its dangers to the international legal order. This, of course, refers to Prosper Weil (1926–2018).90 He is the sole exception to this extraction from the SFDI’s Gallery, for his death is quite recent and, maybe so as not to interfere with the homage colloquium that took place on October 3, 2019, at the University Paris 2, where he taught for many decades, no

Gilles Cottereau (cited by Julien Cazala in ‘Guy Ladreit de Lacharrière’ (n 83)), ‘Vivre et penser le droit international’ in Guy Ladreit de Lacharrière et la politique juridique extérieure de la France (Paris: Masson 1989) 184. 86 Both are apparent in his general course at The Hague Academy, and even in its very title: ‘Panorama du droit international contemporain: Cours général de droit international public’, (1983) 183 Hague Academy of International Law Collected Courses 9-382. See also Michel Virally, La pensée juridique (1960, reprint Paris: Editions Panthéon Assas 2010), which remains a reference to this day. 87 Cited by Anne-Laure Chaumette, ‘Michel Virally’, at , quoting Michel Virally in ‘Le phénomène juridique’, (1966) 82 Revue du droit public 5-64. See also the article by Jorge Vinuales on Virally’s theoretical tenets: ‘Michel Virally ou penser le phénomène juridique’, (2009) 55 AFDI 1-38. 88 Daniel Bardonnet, ‘In Memoriam: Le Professeur Michel Virally (1922-1989)’, (1988) 34 AFDI 11. 89 Michel Virally, ‘A propos de la ‘lex ferenda” in Mélanges offerts à Paul Reuter – Le droit international: unité et diversité (Paris: Pedone 1981) 519. 90 Prosper Weil, ‘Vers une normativité relative en droit international?’, (1982) 86 RGDIP 5-47. This paper was also famously published in English: ‘Towards Relative Normativity in International Law?’, (1983) 77 AJIL 413-442. 85

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portrait of him is yet available.91 A view from the “inside” of French scholarship can nevertheless be given as one of the speakers at the homage workshop gave me permission to quote him. Jean Combacau was in fact asked to speak about Weil’s “general theory” of international law, and for that purpose he focused exclusively on his Hague course of 1992, complemented from time to time by the 1982 paper on relative normativity. Weil’s approach is indeed most clearly exposed in his general course at The Hague Academy, which he famously titled “International Law in Search of Its Identity.”92 During the colloquium, Combacau undertook to examine the relevance of Weil’s approach in the contemporary context of international law, i.e., 30 years later. He reminded the audience that, at the time, Weil was accused of being a conservative (and seems to have been quite affected by the criticism). Weil’s overall vision based on consistency is well known. In essence, to quote Combacau, “while the technical rules of international law constitute a genuine legal ‘system’, they nevertheless operate according to a logic that, by its very nature, is radically different from the logic that is foundational to any State legal system.”93 As a result, international law cannot be appreciated according to the same criteria as State law, and evaluating it by looking at the evolution of its substantive rules is utterly beside the point. To Weil, the only useful question to ask and examine is whether a (new) substantive element of international law is “logically compatible” with the international legal system. In other words, what new elements can the international legal order “absorb” without compromising its very nature, i.e., without provoking a “revolution?”94 While Combacau did not give an explicit appraisal, it can easily be inferred from his appreciation of Weil’s vision that he does not agree with the accusation of conservatism, neither then nor today. After this admittedly long and still reductive journey through French international legal scholarship, the reader should now recall to his memory that the vantage point taken for this analysis was derived from philosophers’, anthropologists’, and sociologists’ perceptive observation that tradition, by its very being, creates an inside and an outside. The entire scholarly overview provided here was given from the inside perspective: it is the narrative of French international law scholarship as told by its current membership. Three brief observations should be made: (1) many authors describe the scholar on whom they write as not merely commenting on international law but actually “living” it; (2) what seems to be meant by “living” international law is that these scholars have practical experience with international law, be it as counsel, agent, judge, arbitrator or at the Ministry of Foreign Affairs; (3) many authors unflinchingly describe their subjects as positivists, with a few

91 There is, however, a form of homage/necrology by the president of the SFDI, Alain Pellet, at . 92 Prosper Weil, ‘Le droit international en quête de son identité’, (1992) 237 Hague Academy of International Law Collected Courses 13-369. 93 Jean Combacau, Journée d’étude en hommage à Prosper Weil, 3 October 2019 (the proceedings of the colloquium should be published soon). 94 Ibid.

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notable exceptions. This is also in line with Jouannet’s overall appreciation, when she confronted contemporary French international legal scholarship with the famous personalities from the past and tried to determine whether contemporary scholarship discontinued the past or whether it is “grounded in a specific tradition, which would be a distinctly French tradition of international law, i.e. a specific way of thinking international law.”95 It is quite revealing that while her introduction unequivocally states that contemporary scholarship is dominated by positivism, her concluding remarks reflect a clear narrative of its own. Indeed, she concludes that while French scholarship is certainly not specific in itself about a certain way of thinking international law, it can be said to be “exemplary of a continental and/or European manner of theorizing it.”96 This narrative is interesting when analyzed through the lens of Georges Balandier’s observations. Like other scholars from various disciplinary fields researching on tradition, Balandier emphasizes the inside/outside opposition but drives it further than stating that inside and outside are generally airtight to each other. He argues that from the outside, tradition represents a “system of knowledge, of values, of dictates, of teachings, and of constraints, which guarantees the individual’s adherence to the existing social and cultural order, and which is passed on from one generation to the next.”97 Contemplated from the outside, tradition therefore appears as a powerful “tool of compliance”: it consists of all the mechanisms and procedures intended to “prevent the manifestation or occurrence of discontinuities and ruptures in the existing order.”98 From the inside, however, tradition is mostly perceived as being completely harmless. Here it rather represents something natural and even virtuous, a form of exemplary “fidelity to the past” and a “legacy that provides guidance to present practices.”99 The crucial point to insist on is that whether we are (consciously or not) members of the social group that is (consciously or not) practicing certain traditions or sharing certain beliefs or an outsider to that group will dramatically change our way of looking at tradition, and even being aware of it. As outsiders, we will very likely be critical of tradition—any tradition—and be sensitive either to the “strangeness” of others’ traditions or to the power mechanisms at play, or both; as insiders, more likely than not we will not even be aware that we are engaging in something “traditional” and rather feel that we are doing or thinking what is normal to do or think. Keeping this in mind, it is interesting to note that such a positive inside narrative is precisely what resonates in Jouannet’s concluding observations on French scholarship and French tradition. However, if one now switches perspectives, or at least takes a few steps back from the insider circle,

Emmanuelle Jouannet, ‘Regards sur un siècle de doctrine française’ (n 38) 7. Ibid., 57 (emphasis in the text). 97 Georges Balandier, Tradition et modernité: Problèmes théoriques – Illustrations africaines (“polycopié” of his course taught in 1966-1967 at the Ecole Pratique des Hautes Etudes in Paris); Anthropologie politique (Paris: Presses universitaires de France 1967, reprint 2013), chapter VII. 98 Ibid. 99 Ibid. 95 96

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one could wonder to what extent our own domestic international law tradition might be perceived from the outside—i.e., other disciplines or other countries—as constraining, and even as pushing toward conformity and compliance. Without providing an answer to this question, I will rather steer in a different direction and recount a disturbing yet liberating anecdote that perfectly illustrates the “otherness” of the outside perception. At two different points in time, when I was still only remotely thinking about this paper and far from researching for it, two friends and colleagues, separately, made the same observation on French scholarship. Importantly, they are both fluent in French, both familiar with French scholarship, both teaching abroad (but neither in his home country), and both in English-speaking universities. We were discussing the textbooks used by our respective students, and both used the exact same word: they both remarked that all French textbooks, past and present, are “interchangeable.” Most French international lawyers would certainly take issue with this, and even offense, in particular if they themselves are in the textbook business. They would also be able to engage in a detailed account of nuances and specificities in the scholarship of various authors. I, too, would be able to paint such nuances, for I have been educated in international law on the backdrop of these personalities, even when I was not aware of it, and I, too, have clear personal preferences when using textbooks and more generally scholarship. But this is not the point. Neither is it the point to take sides and either defend the originality of French international law scholarship or conversely launch an attack on it. The point is the difference of perception between the “inside” and the “outside” and the chasm between the quasi-religious value of a certain narrative to the insiders to a tradition and, conversely, the diluted or quasi-transparent mark that this same narrative imprints on the outside. The point is also to realize that one can be essentially shaped in his or her identity by scholars of his or her national community, a community that may worship or criticize yet in any event will be influenced by them, whereas the outside is largely if not entirely indifferent to these same scholars and maybe even ignorant of them. While this remark would seem obvious to the most perceptive and sensitive people, it is not certain how many of us—myself included—are fully aware of what or who shaped our legal identities. Nor is it certain if we fully measure just how very little our identity would be reduced to, if we were faced with (Eric) Weil’s mirror of otherness which shows us our own face, or if we reflected on Searle’s quoted remark that we need awareness of the others’ tradition in order to become aware of our own. Consequently, as a matter of reflexivity, the point is also to make us reflect on our own narratives within the larger narrative of the social group we belong to, when we dare take it one step further than the comfort of our own group and see how it fits into the multiple narratives of the outside.100 And so, if and when we should be tempted to take 100

Once again I refer to Bourdieu’s objectivation participante, which emphasizes the value for any researcher and intellectual of realizing that they are part of a national scientific field, “with its traditions, its modes of thinking, its issues, its shared certainties”, and of equally realizing that every one of us occupies a specific position in this field, with specific interests that will even unconsciously orientate our scientific choices (Pierre Bourdieu, ‘L’objectivation participante’ (n 15) 47).

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offense with what we feel is a harsh and unfair appreciation of our narrative as contemplated from the outside (“interchangeable?!?”), maybe we should instead try to remember Barthes’ sharp remark that “the concept of alterity is the most unpleasant one for common sense.”101

7 Tradition’s Hall of Mirrors: Illusion and Belief The raised awareness of the difference between inside and outside narratives points to another key feature of tradition. The first works and research—which Pascal Boyer coined as the “common theory of traditions”102—mainly focused on stability and continuity as characteristic features of tradition. One could then legitimately wonder, when applying these criteria to a reflection on a French tradition of international law, where the so-called traditional scholarship is to be found in its substance nowadays, if stability and continuity are requisites. Indeed, one could hardly claim that contemporary French scholars directly and purely descend from Scellian or Renauldian or Reuterian tradition. But this misplaces the quintessential element of tradition, for stability and continuity both exclusively touch upon the substance of tradition. Yet tradition inherently draws on something much more diffuse and intricate to grasp. This is addressed by contemporary scholarship, who now widely rejects the common theory of traditions, or at least recognizes it to be too narrow. On the contrary, scholars now submit that stability and continuity are not necessarily constitutive elements of tradition and that they can even be missing altogether. In other words, it does not matter so much that the substance of a tradition is actually reproduced. Instead, they draw from the more insightful perception that tradition inherently consists of a large part of illusion. This illusion is indeed crucially needed, to the extent that it serves the symbolic and even quasi-normative purposes of tradition. Hobsbawm already hinted at this when he held that the peculiarity of invented tradition (to which the ones we are interested in belong) is that its supposed continuity is largely “factitious.”103 If we consider this proposition, we probably also need to reject some of Foucault’s analyses as exposed in a chapter revealingly titled “The Unities of Discourse”: while it is doubtlessly true that tradition gives a “special temporal status”104 to certain practices, ideas, or behaviors, their successive, identical, and continuous appearances do not matter so much—if at all. The only thing that matters is the illusion of its persistence or, to put it differently, a form of collective imagination or representation, whether it is accurate or not, whether it is

101

Roland Barthes, Mythologies (Paris: Seuil 1957, new edition Paris: Points 2014) 45. See for instance Pascal Boyer, Tradition as Truth and Communication: A Cognitive Description of Traditional Discourse (Cambridge: CUP 1990); Dan Sperber, La contagion des idées (Paris: Odile Jacob 1996). 103 Eric Hobsbawm, ‘Inventing Traditions’ (n 15) 2. 104 Michel Foucault, The Archaeology of Knowledge (New York/London: Routledge 2002) 21. 102

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truly shared or not. In an even more radical form, Searle expresses the exact same idea, although he altogether bypasses the notion of illusion and rather zooms in on a form of collective pretense. In fact, he submits that “one way to create institutional facts in situations where the institution does not exist is simply to act as if it did exist.”105 In relation to French (or other) international law tradition, we do not need to go as far as to claim that it never initially existed but came into being by sheer will power. The interesting idea that Searle’s observation invites us to reflect on is simply that illusion, pretense, or make-believe, as a form of constitutive narrative, is able to construe our social reality, including our traditions embedded in it. Edward Shils pushes the argument even further by submitting that the only thing that matters for a tradition to exist and be preserved is that it is believed to be preserved.106 Interestingly, one detects exactly the same focus in scholars from anthropology, even if their approaches are couched in different words. The first to explore this avenue were folklorists, who emphasized the psychological element of belief, or even faith, as being constitutive of tradition.107 In more ways than one, this argument does not fundamentally differ from Nietzsche’s remark that tradition becomes more “venerable” from generation to generation yet the more remote we are from its origin and the more confused we become about its origin. Tradition, he concludes, ultimately “becomes holy and excites awe.”108 Most readers will probably challenge such an assertion, for we all like to think of ourselves as free thinkers and the very word “awe” applied to ourselves makes us uncomfortable. Without driving this argument deeper, I would simply ask the reader to open a French PhD thesis in international law—including mine. Inside any such thesis, they will find a massive amount of scholarly references, among which at least some of the most celebrated French international law scholars from a quite distant past, even when they have written nothing particularly relevant to the issue. A nexus will nonetheless be established, if need be by artifact, so that a prestigious reference can be made. What is worse, some authors quoted have theoretical approaches that even profoundly run counter to the approach and convictions of the thesis’ author. I am certain this is not characteristic of French PhD theses, nor of international law, but that it is a feature in many countries and disciplines. This is not to say, also, that PhD candidates are the only ones to engage in such undiscerning practices, far from it. It

105

John R. Searle, The Construction of Social Reality (London: Penguin Books 1995) 118. Edward Shils, ‘Tradition’, (1971) 13 Comparative Studies in Society and History 133. See also, by the same author, Tradition (Chicago: Chicago University Press 1981). 107 Arnold Van Gennep as quoted by Olivier Morin, Comment les traditions naissent et meurent (n 31) 49. 108 Friedrich Nietzsche, Human, All Too Human: A Book for Free Spirits (first published 1878; Edinburgh: T.N. Foulis, 1910) 95. Quite similar are Bourdieu’s words about what he calls “prophetic discourse” (very powerfully expressed in French: “Le propre du discours prophétique est d’arracher complètement les croyants à toute inquiétude concernant le sens du monde”, in Pierre Bourdieu, Sociologie générale vol. 1 (n 9) 115). See also Hugo Mercier and Dan Sperber, The Enigma of Reason (n 14) 243-244: they convincingly demonstrate that like-minded people will only ever “provide each other with reasons supporting already held beliefs.” 106

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is pervasive in all kinds of scholarship. Quoting and referencing past authors who are most celebrated in the discipline is just what we do. For the time being, we can leave aside the question of what exactly the underlying belief is. It could be many things: blind dependence on and adherence to the opinion of trusted and influential academics, one’s PhD supervisor for instance; the belief that certain references per se appose a seal of quality to a piece of work; the belief that they suffice as tools of a form of self-validation; or the belief that certain types of references are a requirement of the discipline, in order to be taken seriously by its membership—in short, a form of rite of passage. Bourdieu harshly points that the official discourse of science is “a collective hypocrisy, suitable to guarantee the minimum of shared faith that is necessary to the functioning of a social order.”109 Although those words were written in a slightly different context, one could nonetheless wonder about their relevance in our own international lawyers’ (national) social order. In particular, the point to be made with this acknowledgment of the power of illusion (or belief, or even a form of faith) in creating and maintaining tradition is that no quote and no reference we undiscerningly make are benign nor is any “corporate” practice we equally undiscerningly engage in.110 One last point should be made. How illusion or belief is felt is subjective as it pertains only to the individual members of a social group engaging in a certain practice. However, if insiders to a tradition in fact engage in it as a simple matter of belief, then its counterpart perception from the outside will be the “coercive” face of tradition. As already pointed out, outsiders do not share the same beliefs, and therefore, to them, tradition will appear to exert at least some form of psychological, moral, or social pressure. Boyer in particular attempted to highlight this in a very interesting piece of scholarship in which he inquired into the relationship between tradition and truth. His conclusions, as it turns out, run counter to most classical scholarship. According to Boyer, indeed, tradition is not the origin of belief; it is the other way around: it is accumulated beliefs that constitute and perpetually renew tradition.111 This most delicate and arguably touchy relationship with the complex notion of truth might also be why most people tend to be almost instinctively hostile against anything that challenges tradition and the system of quasi-religious belief at 109

Pierre Bourdieu, Science de la science et réflexivité (n 16) 152. Elsewhere he went even further, specifically zooming in on the world of the law: “the tacit belief in the legal order constantly needs to be renewed, and it is one of the main functions of the genuinely legal work to codify representations and ethic practices in order to convince the uninitiated and the non-believers to adhere to the very foundations of the lawyers’ professional ideology, i.e. the belief in the neutrality and autonomy of the law and of lawyers.” See Pierre Bourdieu, La force du droit – Eléments pour une sociologie du champ juridique (Paris: Editions de la Sorbonne 2017) 65 (first published in (1986) 64 Actes de la recherche en sciences sociales 3-19). 110 Durkheim powerfully wrote that “men generally have the desire for self-instruction only in so far as they are freed from the yoke of tradition; for as long as the latter governs intelligence, it is all-sufficient and jealous of any rival”, in Emile Durkheim, Suicide – A Study in Sociology (first published 1897; London: Routledge 2002) 116. 111 Pascal Boyer, ‘Tradition et vérité’, (1986) 26 L’Homme (L’anthropologie: état des lieux) 309-329.

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its core. In this vein, Steve Sloman and Philip Fernbach give a sarcastic and sadly accurate account of our trained behavior as academics. They matter-of-factly observe that “when academics encounter a new idea that doesn’t conform to their preconceptions, there’s often a sequence of three reactions: first dismiss, then reject, and finally declare it obvious.”112 Interestingly, the chapter in which they develop this line of thought is an appraisal of ignorance, in the sense that ignorance is to be sanely and humbly acknowledged, as well as the illusion of our knowledge. Sperber ultimately pushed the reflection on belief as the constitutive force of tradition several steps further and developed an approach that has had a resounding effect throughout several disciplinary fields, and not only for the catchy name he gave it: “epidemiology of representations.”113 His interest arose from the (today widely shared) conviction that, to use the words of Morin, tradition is “not a fact that needs to be explained, but an illusion that needs to be analyzed.”114 His approach is therefore profoundly grounded in cognitive psychology and, as such, is exclusively interested in the psychological facet of tradition—or, more accurately, in the psychology of those participating in it. He resolutely sets aside the main tenets of classical scholarship on tradition. Put simply, his approach tries to explain why and how it is that a certain social practice or idea will somehow be believed, i.e., be remembered and distributed, whereas others are not. In our case, how is it, for instance, that French mainstream international law scholarship is precisely that, i.e., mainstream, while Chaumont is not? Sperber convincingly submits that psychology is indispensable (but not sufficient) to explain cultural phenomena and the causal links implying mental and public representations. Psychology, in his words, should be to epidemiology of representations what pathology is to epidemiology of diseases,115 and his approach puts forward a very convincing argument of why and how some ideas “spread.” Of course, if I now started venturing into psychology, most readers who have clung on until here will now stop reading, for no one wants to be analyzed, least so publicly and least of all by their peers.

8 Gates and Gatekeepers: Tradition as Empowerment The submission that our tradition is largely a matter of belief raises another intriguing question, which was set aside earlier. What exactly is this belief that is quintessential to tradition? To quote the brutally plain words of Sloman and Fernbach, it is

Steven Sloman and Philip Fernbach, The Knowledge Illusion – The Myth of Individual Thought and the Power of Collective Wisdom (New York: Pan Books 2017) 255. 113 Dan Sperber, La contagion des idées (n 102). His entire book is grounded in the expression, foundational to his theory, but see in particular 8-11, 39-41 and 79-105. 114 Olivier Morin, Comment les traditions naissent et meurent (n 31) 48. 115 Dan Sperber, La contagion des idées (n 102), 83. 112

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“that others are telling the truth.”116 This statement might make most readers jump and protest. Of course, the implication is not that international lawyers are gullible. The quote raises a subtler but also grave question: that of the identity of the authors of certain utterances and why some utterances will develop into traditions and be passed on. It also points to the crude idea that some individuals or institutions are vested with a form of authority that, in itself, is enough to justify adherence by the members of the social group. And indeed, most research in human and social sciences that pinpoints illusion and belief as constitutive elements of tradition will also point toward another notion that typically makes lawyers squeamish: power. Yet collective acceptance, acknowledgment, recognition, tolerance, etc. of power even is—to quote Searle—“the one primitive logical operation” indispensable for the shaping of any social group’s narrative of its reality.117 But power has a bad name with (international) lawyers. It does not square with the dominant representation of the law as being determined by formal—and thereby supposedly objective—processes. When lawyers happen to speak of power, they like to clarify that what they are now saying belongs to the realm of politics. Incidentally, in so doing, they participate in preserving a legal tradition of hardcode formalism and boundaries—as if politics and the law were not one and the same. But that, of course, is an equally unspeakable assertion (and if spoken, the author will immediately be labeled CLS by the audience), for the law is supposedly a pure science that can be handled according to formal methodologies, which do not require and do even forbid to take a close look at the “handlers” and how they handle their power. But be that as it may, when we engage in a reflection on international law traditions (in fact any tradition), this question cannot be discarded anymore. The notion of power is hardly avoidable. Any tradition, including our scholarly or practical international law traditions, rests on a system of beliefs; any such system of beliefs, to exist, is animated by a community of “believers”—whether they are aware of being believers or not does not matter—and ultimately, any community or social group has implicit or explicit structures, including structures of power, whether they are visible or not, whether they are acknowledged as such or not. More often than not, they actually will not be acknowledged for what they are, and yet they exist and have powerful yet subtle means of operating. These issues have already been extensively and forcefully explored and demonstrated, and it suffices to point to their well-known theories and findings, especially the inaugural research on scientific communities and their paradigms published by Thomas Kuhn as early as the 1960s and 1970s.118

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Steven Sloman and Philip Fernbach, The Knowledge Illusion (n 112) 224. John R. Searle, The Construction of Social Reality (n 105) 104-112. 118 For instance, Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press 1962). See also ‘The Function of Dogma in Scientific Research’ in Alistair C. Crombie (ed.), Scientific Change: Historical Studies in the Intellectual, Social and Technical Conditions for Scientific Discovery and Technical Invention, from Antiquity to the Present (London: Heinemann 1963) 347-369. 117

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Equally significant with regard to international law traditions is the similar yet different notion of “epistemic communities,” i.e., social groups implicated in one way or another in knowledge production. While the expression has become quite established in English international law literature, it has hardly set foot at all in French scholarship. This is revealing in itself, to the extent that the notion of epistemic communities provides interesting insights into why and how our (French) international law tradition is created and by whom, and why and how it is preserved and by whom. Discarding or even ignoring the research on such a fundamental notion—and quite possibly ignoring the notion itself—is therefore not benign at all and, on the contrary, reflects a clear disposition toward a certain (traditional) way of looking at international law. Ironically, this is precisely what the research on scientific and epistemic communities aims at highlighting: any such community operates by determining the issues that one is allowed to address and those that are to be excluded and by identifying the exclusive theories and methodologies that are to be used to address the authorized issues. By authoritatively framing the discourse and drawing the line between orthodoxy and heresy, they play a crucial role in nurturing tradition, kindling its underlying system of belief, and securing continued adherence by their membership of followers. In fact, as argued by Andrea Bianchi, “the ultimate stake for any epistemic community is to acquire and maintain control of a scientific or social field by imposing its own vision of the field as authoritative.”119 Such an assertion might make most international law scholars uncomfortable. Consequently, they might deny it altogether or attempt to distance themselves from the “community” by emphasizing their differentiated individuality. But even if we are tempted to do so, we would have a hard time denying that we are still caught up in the invisible meshes of the net of what Searle calls Background power. Simply put, Searle’s “Background” is composed of all ideas, presuppositions, preconceptions, attitudes, practices, and dispositions that impose a form of normative constraint on members of a social group. “Power,” for its part, will manifest itself in the form of sanction. Now assembled, “Background power” thus occurs when breaches of social codes and constraints can be sanctioned, in one way or another, by any member of the community.120 This, to me, resonates like the quintessence of how power relations in academia operate. One need only think of editorial publishing choices, or of the clashes of competing discourses of international law, where each is boxed into a specific category—voluntarist positivism, objectivist positivism, CLS,

Andrea Bianchi, ‘Epistemic Communities’ in Jean d’Aspremont and Sahib Singh (eds), Concepts for International Law – Contributions to Disciplinary Thought (Cheltenham: Edward Elgar 2018) 252. 120 John R. Searle, Making the Social World (Oxford: OUP 2010) 155-160. Interestingly Searle calls American academics an “extremely conformist group”, in the sense that their education trains them to accept a set of assumptions and presuppositions (at 159, margin note 11), but one could easily extend this analysis to any number of countries and Backgrounds, French international law education being no exception. 119

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TWAIL, New Haven, etc.—as if boxing them in could contain them and somehow sugarcoat how brutally they collide. If we now look back to Bianchi’s analysis of epistemic communities, we can hardly remain unaware of the systems of beliefs animating each such community. Furthermore, their competition cannot be reduced to a mere theoretical and therefore harmless squabble. In Bianchi’s words, “the opportunity to determine who is entitled to speak authoritatively about international law is certainly a stake that most members of the different epistemic communities at play in international law would consider worth fighting for.”121 Bourdieu would have called this stake of the fight “constitutive power,” i.e., the power, by imposing a dominant representation in a disciplinary field, to make this representation actually become a reality.122 Barthes for his part identified two types of discourse: the encratic discourse, in line with doxa and therefore clashing with the acratic discourse, which challenges doxa and is thus subtly coined by Barthes as the “paradoxal” discourse. His main argument, based on this distinction, is but a different way of expressing the exact same ideas as the authors mentioned before: “doxa is the cultural (or discursive) mediation through which power (or non-power) speaks.”123 To bring lawyers, especially French international lawyers, more close to home, this is also precisely what lies at the core of the expression famously coined by Rivero, faiseurs de système (system makers),124 although Rivero himself celebrated them rather than realize their critical implications. The reader could wonder how any of this relates to the French international law tradition. It does so in a very simple way: there are hardly any truly competing discourses of international law in French scholarship. There are nuances, of course, and there are specific features and preferences that one can easily identify in various scholars. But it can safely be said that the French international law discourse has largely remained immune to the theoretical variety in English-speaking international law scholarship and, therefore, also to the fight between competing approaches of international law. This in itself speaks to a powerful tradition and should be enough to realize that the notion of power cannot be evaded when we reflect on the tradition of our international lawyers’ community. Revealingly, one can read exactly such a display of power on the SFDI’s website, in the address published by its president at the beginning of the academic year 2018/ 2019.125 As it later served as the basis for a paper published in 2019 as part of the Berlin-Potsdam research program “The International Rule of Law – Rise or Andrea Bianchi, ‘Epistemic Communities’ (n 119) 265. Pierre Bourdieu, Sociologie générale vol. 1 (n 9) 113, and 126-130. On epistemological fights, see 442-445. 123 Roland Barthes, ‘La division des langages’ in Roland Barthes, Le bruissement de la langue – Essais critiques IV (n 4) 129. 124 Jean Rivero, ‘Apologie pour les ‘faiseurs de système”, (1951) 23 Dalloz 99-102; also published in André de Laubadère et al., Pages de doctrine (Paris: LGDJ 1980) 3-10. 125 Alain Pellet, ‘Le mot de rentrée du Président: Crise ou effondrement du droit international?’, 19 September 2018, at . 121 122

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Decline?” chaired by Heike Krieger and Georg Nolte, it also provides an authentic translation of the French address.126 After giving an overview of the current tensions in international law and relations, Pellet asks: “and meanwhile, what do lawyers do? What do we, international lawyers, do?”127 His answer reads as follows: Some of our colleagues – and it has become an influential and attractive trend, especially among young internationalists – indulge in sterile ‘navel-gazing’ by denouncing the turpitudes (supposed or real) of the small world of internationalists (of which they are part or aspire to become part. . .): ‘new stream’ and the new critical studies are scarcely interested in the substance of the law but only in criticizing those who make or study it. Others, though fewer, use the law as an instrument to defend national and nationalist positions – I think, among others, of the ‘New Haven School’ but we can also observe the growth of a Chinese group of international lawyers who develop more or less subtle analyses in defense of China’s imperialism. And then there is the so-called main stream, which strives to present the law as it is and to make it serve the purposes defined by the founders of the United Nations in Article 1 of the Charter.128

The address then quotes the purposes listed in the Charter and concludes that “this is the international law that the Statutes of our Society invite us to defend.”129 One might adhere to these words and one might not, and our personal views regarding their substance are not relevant here. However, one would have a hard time trying to deny that they are exactly what Bourdieu calls “standardized discourse” (la perception homologuée) or, elsewhere, the “degree zero of legitimation discourse.”130 In fact, it forcefully reveals how much the dominant discourse operates as a non-discourse by authoritatively disqualifying, ridiculing, or even silencing those other discourses that give voice to issues and approaches excluded by and from the dominant discourse. Furthermore, whatever one’s adherence or not, one should not underestimate the influence of such discourse, especially on students of international law—which is, of course, precisely what it aims at achieving. When a respected and prominent authority tells us that engaging in criticism of the world of international law equals sterile navel-gazing, can we still be surprised that French scholarship participates so little if at all in the ongoing theoretical debates elsewhere? It can also safely be suggested that few PhD candidates would muster the courage to propose a thesis (which, after all, will grant or deny them access to the community) that offers an alternative discourse of international law. Now, can we truly go on pretending that power structures are not at play in the (French) international law community? Alain Pellet, ‘Values and Power Relations – The ‘Disillusionment’ of International Law?’, KFG Working Paper Series, no. 34, May 2019, available at . 127 Alain Pellet, ‘Le mot de rentrée du Président’ (n 125). 128 Ibid., as translated in ‘Values and Power Relations – The ‘Disillusionment’ of International Law?’ (n 126) 6. 129 Alain Pellet, ‘Le mot de rentrée du Président’ (n 125). 130 Pierre Bourdieu, Sociologie générale vol. 2 – Cours au Collège de France 1983-1986 (Paris: Seuil 2016) 738, and Sociologie générale vol. 1 (n 9) 617-618. 126

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The point is not to say that CLS is right or that TWAIL is right or that New Haven is right or that positivism is wrong. This is not an issue of right and wrong, of good and bad—although, ironically, all theoretical approaches have in common their selfrighteousness and to paint themselves as speaking “the truth.” The point is merely to raise awareness of the playing field, of the competition between discourses, of the struggle for inclusion into the dominant group, or, conversely, for exclusion of undesirable voices from this group. The point, ultimately, is also to realize how much tradition relies on power to preserve its orthodoxy and how it bulldozes anything—by seemingly light mockery, professional disqualification, or blunt denial—that is equated with heretical discourse. I, for my part, must admit that I found it quite fascinating to stare at my navel for the purposes of this paper, for surprisingly it provided me with many realizations about the national community I am a member of, about the profession I engage in, about how I engage in it, and ultimately about how much the French tradition has shaped my own navel. This is not to say that such introspection is pleasant. Navel-gazing—or what others, famously and less depreciatingly, would call reflexivity—is pitiless and unflattering. But one should engage in it once in a while, if only to gain better understanding of their own active or passive participation in international law’s power structures and of how, just possibly, they might themselves be a piece of the complex puzzle that is called tradition. I suspect that those who discourage us from looking at our navels are very much aware of this, and I would further submit that this is precisely why the gatekeepers of tradition would prefer us to steer clear from our navels. But once again, the literature on tradition in other disciplinary fields provides fascinating insights, for it addresses these issues, including power, much more straightforwardly than the discipline of the law ever does, which typically excludes it from its analyses on the authoritative ground that “this is not law” (once again). Sperber’s research on tradition, for instance, suggests an “epidemiology of beliefs”131 grounded in a distinction between two types of beliefs. Some are intuitive in the sense that they owe their rationality to mechanisms of perception and inference that are innate and, therefore, universal. All other (nonintuitive) beliefs are reflexive: individuals will still rationally adhere to certain representations and adopt them, but the rationality according to which they make this choice will be entirely dependent on the authority of the source providing the representations.132 A very similar idea is expressed by Sloman and Fernbach, who matter-of-factly observe that a great amount of scholarly opinions, works, and beliefs are based in one way or another on authority. Put in such abstract words, we might even be inclined to accept this idea without resistance. But we get more uncomfortable when they drive their argument home. For what is authority? Authority, quite simply put, is what “is written in a textbook or journal article, or what your expert friend tells you.”133

In French, “épidémiologie des croyances”. Dan Sperber, La contagion des idées (n 102), specifically chapter IV, 108-135. 133 Steven Sloman and Philip Fernbach, The Knowledge Illusion (n 112) 222. 131 132

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Most readers will probably get annoyed at this stage, if they are not already. Once again, we do not like to think of ourselves as anything less than free thinkers, as anything less than strongly independent and original in our thinking, and we certainly do not like to think of ourselves as blindly curtsying to some form of power. Most readers would possibly also reject altogether the notion that power structures exist in our international law profession and therefore equally discard the idea that they are crucially involved in framing and preserving tradition. Without demonstrating this point further, I simply refer back to the Gallery of international lawyers provided on the SFDI’s website and would ask the reader to genuinely reflect on the impact of such a project. My argument is not to say that it is a bad project, quite the contrary, and it is undoubtedly very valuable. The point is simply to acknowledge the role of any institution—even an academic one, for they are hardly powerless—in giving certain representations and the pervasive influence it exerts on its followers, or what I called earlier its community of believers. By the same token, why is it that most of us—not only students—get excited at the announcement of a lecture by, let us say, a former president of the ICJ but remain unimpressed by the same announcement for a lecture by a less institutionally anointed scholar of international law theory? These questions are annoying, and it is more comfortable to ignore them altogether. In our legal profession, we indeed tend to do so on the ground that authority and power supposedly have little to do with our craft and the formal tenets of the law. But one need only look at what, at first glance, seems quite harmless and light: language. It offers a striking illustration of how much power in its various forms already irrigates the French mindset. By language is meant both ordinary and legal language, and what is interesting is how much the latter has penetrated the former. Notably, any person, adults and children alike, will thoughtlessly say, when they claim something, “j’ai le droit de. . .” (or “j’ai le droit à. . .”). Literally translated, this means “I have the right to. . .” In no other language I speak or understand is this expression common currency in ordinary language, even in German, where the vocabulary is strongly tinted by law, entitlement, and power. Yet in French, it is absolutely trivial, and even young children say it, obviously copying what they hear all around them. But there is nothing remotely natural for a child (or an adult for that matter) to frame wants, desires, and claims in legal terms and more precisely in terms of legal entitlement. This common expression alone speaks volumes on the underlying mindset of boundaries, authority, and power. An even more striking example, and more directly speaking to the French international law tradition, is the notion of “validity,” which has a powerful foothold in ordinary language. This, of course, is not alien to the omnipresence of “validity” in the French legal culture, to the point that quite possibly its influence is stronger even than in those Germanic countries where the notion was most famously theorized. Validity is one of the core notions that students are taught in the first year of their legal education, and it is pervasive in the French legal vocabulary. While this would appear somewhat “normal,” at least traditionally normal, in constitutional law, for instance, it can easily be submitted that such foundational implantation of “validity” in French law students’ minds has an equally strong influence on their way

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of approaching international law. In fact, when they are taught international law for the first time, students will typically be told that international law in large part is not about validity, for the concept cannot operate in the same way in the international legal order. This is quite revealing in itself, and many traces of the French fondness for validity can be found in international law scholarship134 and even in the work of the International Law Commission coordinated by a French rapporteur.135 This speaks to a tradition of international law that is dominated by exclusively formal lawmaking tenets and a rigid line distinguishing international law from nonlaw.136 Leaving the legal universe, it is even more disturbing to observe that “validity” has massively invaded ordinary language. Journalists will routinely write that the French Constitutional Council has “validated” the law under review or that the WTO Appellate Body has “invalidated” the European trade subsidy in favor of Airbus; administrative authorities will routinely write that they “validated” a request; the word is used even in the most incongruous circumstances, for instance, when I ask the university staff to book a classroom for a course and they systematically reply “c’est validé” (?). Validity is everywhere, even in the oddest of places, and evidently the love for the substantive has extended to the verb, fashioning it into both transitive and intransitive forms (“le Conseil constitutionnel a validé la loi” (sic); c’est validé (sic bis)). The purpose of this linguistic excursion is not to mock but to point to the culture and mindset it reflects. For what looms behind the so-called validity of a law, of a subsidy, of an administrative request, and even of the request to book a classroom but the notion of a higher power that provides validity and thus a clear mental disposition toward hierarchical structures? While this is commonly and mockingly equated with a supposedly typical Germanic mindset, it could be argued that the strong French administrative organization has left equally powerful cultural marks. None of these linguistic features are actually light and harmless, and none of them should lightly be discarded, least so on the ground that “this is not law.” We need only think of Searle’s theory on how communities create their social reality to realize just how much our international law traditions are embedded in what he calls

Particularly noteworthy is Jean Combacau’s ‘Logique de validité contre logique d’opposabilité dans la Convention de Vienne sur le droit des traités’ in Mélanges Virally (Paris: Pedone 1991) 195-203. Also see Michel Virally, ‘Norme fondamentale hypothétique et droit international’ in Recueil d’études en hommage à Charles Eisenmann (Paris: Cujas 1975), 453-467. 135 See ILC, Guide to Practice on Reservations to Treaties, 2011. The intensive focus on the validity of reservations and the consequences of invalid reservations to a certain extent is even quite amusing, when one considers that France (like many countries) is in the habit of objecting to reservations by declaring that they consider the reservation to be contrary to the object and purpose to the treaty (which should thus be grounds for invalidity, if one takes the Vienna Convention seriously) but that they nonetheless do not object to the reserving State becoming a party to the treaty and being bound vis-à-vis one another. . . See also Mathias Forteau, ‘Quelles conséquences pour les réserves non valides?’ in SFDI, Actualités des réserves aux traités (Paris: Pedone 2014) 87-92. 136 Incidentally, the same could be said about other notions that French international lawyers are particularly fond of, for instance “compétence” (jurisdiction), or “juridiction” (court or tribunal). 134

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institutional facts. Unlike brute facts that exist independently from human institutions, institutional facts are entirely artificial. Language, Searle writes, is one such institution by which institutional facts will be created.137 It hardly needs to be demonstrated that language shapes our reality, including our construed reality of international law as we represent it through discourse. And, in Searle’s own powerful words, “once you have the capacity to represent, you already have the capacity to create a reality by those representations, a reality that consists in part of representations.”138 We can hardly ignore such notions if we genuinely engage in a reflection on what constitutes our international law tradition. It is not mere happenstance that some theoretical analyses of international law remain distinctly French and are, so to speak, “untranslatable.” For instance, I doubt that any English-educated international lawyer is familiar with the concept acte-condition and would ground their analyses in the concept. Yet any French international lawyer is familiar with it and oftentimes even uses it based on a legal education which, consciously or not, is profoundly influenced by an administrative law culture. By the same token, French international law literature displays a certain fondness for the acte juridique, a concept that cannot even be properly translated into English (legal act? The expression would probably be understood but resolutely attributed to a continental European scholar).139 Similarly, the French legal notion opposabilité is quite simply impossible to translate, nor does it have an English equivalent.140 Central in French administrative law theory and practice, it seems to have massively influenced French international lawyers’ approach. In the same manner as the influence of the notions “acte juridique” and “acte-condition,” this is yet another strong testimony of how much the French tradition of international law is drawn from national law mechanisms and legal theory. Based on these limited examples, one could even venture further into what our language tells us about our legal traditions and reflect on how much our way of looking at international law could possibly have been shaped by a creeping

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John R. Searle, The Construction of Social Reality (n 102) 27. John R. Searle, Making the Social World (n 120) 84. 139 Incidentally, it was Duguit who crafted the notion of “acte-condition”, in his famous tripartite classification of “legal acts” where he distinguishes “acte-règle”, “acte-condition” and “acte subjectif”. See for instance in Léon Duguit, Traité de droit constitutionnel, vol. I (Paris: E. de Boccard 2nd edn 1921) 219-227; or Leçons de droit public général (first published Paris: E. de Boccard 1926; reprint Paris: La Mémoire du Droit 2000) 73-81. 140 A striking example can be found in the 1995 ICJ East Timor judgment, regarding the erga omnes character of the right to self-determination. Para. 29 of the French version reads as follows: “le droit des peuples à disposer d’eux-mêmes (. . .) est un droit opposable erga omnes (. . .). Toutefois, la Cour estime que l’opposabilité erga omnes d’une norme et la règle du consentement à la jurisdiction sont deux choses différentes” (emphasis added). By contrast, the English version simply says “the right of peoples to self-determination (. . .) has an erga omnes character (. . .). However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things” (emphasis added). Character and opposabilité are nowhere close to being synonyms, and yet the translators have preferred this word over the exact French equivalent “caractère”. See ICJ, East Timor (Portugal v. Australia), judgment of 30 June 1995. 138

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and distorted version of what Austin in his speech act theory famously coined as “performatives”141 (of which any lawyer, incidentally, is familiar by education).142 But even without exploring this further, we should at least acknowledge that the above-described French linguistic culture and fondness for certain words will somehow shape the French international law tradition and that they equally tell us something about our disposition toward authority and power. On this backdrop, it is noteworthy that France is a strongly centralized country, notwithstanding the dominant discourse of décentralisation, where political power but also academic power (especially in the field of international law) are essentially concentrated in Paris, or at least indirectly derive from Paris. This is not merely of interest for constitutional and administrative law scholars: arguably, the centralized configuration of power in France is not alien to a number of features of international law tradition. This leads to a different path of inquiry that is of the utmost importance regarding tradition, and the French tradition of international law in particular: the relationship between the international law community and actual political power. All international lawyers are familiar at least with the title of the famous paper by Oscar Schachter, “The Invisible College of International Lawyers.”143 It speaks to the blurred lines between international law scholarship and international law politics and shows just how much our professional community, the “invisible college” we constitute, “extends into the sphere of government.”144 The aim, of course, is for our ideas to penetrate official channels. While this struck Schachter already in the 1970s, it is evident that the phenomenon has spread exponentially over the last decades, especially with the proliferation of institutions and, in particular, international courts and tribunals. While traditionally the Holy Grail for international lawyers was the PCIJ and then the ICJ, one need only think of the sudden fascination of many international law scholars with investment law or, to speak more candidly, with its very own power structure (and not negligible source of income), investment arbitration, and their sudden conversion to the field. In itself, Schachter’s argument raises intriguing questions, for it is obvious, for instance, that not all international law scholars have access to government channels. Who, therefore, are the international law scholars who are members of the “invisible college” and thus wield influence? In other words, where is power located, in our scientific community? When reflecting on the French international law tradition, at this stage one could be tempted to wander off into inquiries into the practices of the French government when nominating or proposing individuals for election to 141

John L. Austin, How to Do Things with Words (Oxford: Clarendon Press 1962). For once I favor the French translation of the title, which is much more powerful than the original: Quand dire, c’est faire (Paris: Seuil 1970). 142 Bourdieu even emphasized that the law is the ultimate form of acting discourse, in the sense that it is able, of its own force, to produce effects; in fact, it literally makes the social world. See Pierre Bourdieu, La force du droit – Eléments pour une sociologie du champ juridique (n 109) 23. 143 Oscar Schachter, ‘The Invisible College of International Lawyers’, (1977) 72 Northwestern University Law Review 217-226. 144 Ibid., 217.

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international institutions and other international bodies. They are fascinating grounds for inquiry indeed for what they reveal about an obvious form of cursus honorum in order to be granted the right of entry. However, unlike ancient Rome, where it was ultimately formalized in the law, thus setting transparent (although questionable) rules for access to power and how to climb its ladder,145 power structures have become more varied and diffuse, and the French international law cursus honorum remains somewhat covert. Its secrets are hardly a secret to any French international lawyer, but as Bourdieu cynically phrased it, it is a simple law of any aristocracy to never explicitly reveal what an aristocracy actually is.146 Schachter’s research is as true in France as it is probably in most countries. What is striking, however, is that the college of international lawyers in France is not invisible at all. On the contrary, it openly reveals its membership. To remain proper and cite only past scholars, I refer back to the Gallery of international lawyers mentioned earlier: the reader will easily discover that the vast majority of biographical notes on the famous and influential international law scholars proudly and extensively describe the scholars’ involvement in the practice of international law and give a detailed account of the famous cases before an arbitral tribunal, the PCIJ or ICJ they were involved in, or their function with the French Ministry of Foreign Affairs. What is more striking, even, is that some biographical notes will give an account of such a practitioner’s career before they even develop the scholarly contributions of individuals who were academics by profession. This, to me, seems like a distinctly French tradition of international law, i.e., the evident pride taken in scholars’ involvement in the practice of international law. I will come back to this from a different perspective in the following section. For the time being, suffice it to raise the question of what such interlinkage between scholarship and practice tells us about the power structures at play. Furthermore, what does it tell us about traditional approaches of international law and their preservation? We need to at least consider these questions, for no one is naïve enough to think that every international law academic has access to international arbitration or litigation, simply because they are versed in international law. Conversely, no one is naïve enough to think that the French government—or any government for that matter—does not carefully vet and select those chosen academics it entrusts with representing them before international courts and tribunals. Where practice is so highly valued, and is openly as intertwined with academia as it is in France, venturing into unorthodox scholarly discourse will come at a costly price. We can hardly entertain the illusion that academics have no vested interests in preserving a certain tradition of international law and in staying in line with a certain representation of international law. Any tradition, including that of our academic profession, is at its core used as a tool of self-empowerment; more often than not, it will therefore end up creating vested interests. Whether a given tradition is judged to be substantively good or bad is not

145 146

See Lex Villia Annalis, 180 BC. Pierre Bourdieu, Sociologie générale vol. 1 (n 9) 137.

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the issue here.147 But we are obviously the first and foremost gatekeepers of our own tradition. Consequently, the point is merely to become aware of the stakes we are protecting or allowing to be protected and to realize that tradition is not only what we do because we do not know any different but that there are both individual and collective interests in its preservation. But what is more, while Schachter’s study was focusing on how international law academia penetrates the sphere of government, a distinctly French tradition is that the opposite is equally true: government penetrates academia. Without even going into details of how government regulations influence the curriculum of legal education, there is a much more troubling type of interpenetration. In fact, high government officials or individuals who are otherwise closely connected to the government are integral members of academic institutions and projects, whether they are (former) ICJ judges or, more significantly, the director of the legal affairs division of the Ministry of Foreign Affairs. They notably sit as members of the editorial board of the French Yearbook of International Law, of the scientific board of the Revue générale, and of the board of the French Society for International Law. Evidently, they are quite qualified in international law, and their competence is not in question. Their function and status, however, should be. After all, academic journals and yearbooks reflect the discourse on international law, and one should at least wonder how that discourse is shaped and framed, and what discourse gets silenced in the process, when government officials are among the editorial decision-makers.148 Even if we

147 See also Pierre Bourdieu, La force du droit – Eléments pour une sociologie du champ juridique (n 109) 62-63. Bourdieu indeed had a particular fascination for the law and the world of the law, a world in which most propositions of his general theory could easily be verified. In this instance he observes that, in the social groups engaging with the law, proximity of interests and affinity of habitus will powerfully promote close kinship between approaches of the law. 148 In a similar vein, it is quite unsettling to find high government officials as the authors of pieces for major law journals, especially on particularly crucial and highly sensitive topics of international law. For a quite recent example, see François Alabrune, ‘Le cadre juridique des actions militaires menées par la France en Syrie le 14 avril 2018’, (2018) 122 RGDIP 545-548, in which the director of the legal affairs division of the French Ministry of Foreign Affairs addresses the legality of France’s military strikes in Syria in 2018. Any reader should at least feel uneasy about such “official” (i.e. governmental) discourse on international law in an academic journal, and suspect that by the very function of their author such publications can hardly be truly critical, unless of course the author is willing to be instantly relieved of their functions. Similarly, see Marilyne Grange, ‘Position française à l’égard de la Syrie en 2018: des frappes légitimes, et après?’, (2018) 64 AFDI 734-748. The first footnote, as is usual, gives information about the author’s current academic position, which conveniently allows for omitting to mention her previous position in the legal affairs division of the Quai d’Orsay. Incidentally the reader should note that the author provides an analysis in which the concept of legitimacy obliterates that of legality, and operates as a substitute. This alone should make the reader wonder about how discourse on international law is subtly mainstreamed, in order to conform to the official version. Such interpenetration of government functions and legal scholarship is by no means distinctly French, and touches upon a much broader issue of professional ethics. See for instance Daniel Bethlehem, ‘Self-Defense Against an Imminent or Actual Armed Attack by Non-State Actors’, (2012) 106 AJIL 770-777, a piece published about a year after its author left his position as Legal Adviser to the UK Government. Interestingly yet unsurprisingly, the piece advocates exactly the position that was

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were inclined to discard this implication of political power in academic fora as irrelevant, we could still note the irony of such powerful interpenetration in a country that prides itself with having theorized if not “invented” the separation of powers. But then again, of course, academia is not a constitutional power—which, in turn, should make one wonder why political power in France is so keen on staying involved in academic productions. When I recently asked an eminent international law academic who has himself sat on these boards for decades how it comes that the Ministry of Foreign Affairs is directly or indirectly represented in all these academic institutions, he first shrugged off the question, after more discussion became intrigued, and finally admitted that it was so because . . . it had always been so. The essence of tradition and the covert operation of power at its core could hardly be described more accurately than in these words.

9 Tentative “Epidemiology” of the French International Law Tradition After these cross-disciplinary inquiries into our international law tradition, one final point should be emphasized. Regardless of their different concerns, the different purposes of their research, and the different intellectual and methodological frameworks they use, all disciplinary fields engaging with tradition reveal the role of transmission in order for a tradition to exist and survive. Even those that do not use the word at least implicitly acknowledge the process of transmission. Yet it is only in recent decades that the scientific focus has more frontally shifted from the substantial essence of tradition to transmission and its modus operandi, i.e., to the social and psychological mechanisms and processes by which traditions become and survive. This is crucial, for while tradition intuitively evokes with us a sense of how things are thought and done, it does not spontaneously reveal why they are thought and done, nor are we naturally inclined to think about it. As Dan Ben-Amos aptly put it, “until recently, tradition has been a term to think with, not think about.”149 As noted above, cultural “epidemiology” as an intellectual and methodological thread for the inquiry into tradition has been pursued by an important number of scholars, who have engaged in exploring the interactions between psychology and social sciences.150 Boyer has even given his previous research a more radical turn, by steering his most

later endorsed by the UK Attorney General in his famous 2017 speech at the International Institute for Strategic Studies, in which the AG actually quotes Bethlehem by name and extensively engages with the ideas laid out in his 2012 paper (the speech is available at ). 149 Dan Ben-Amos, ‘The Seven Strands of Tradition: Varieties in its Meaning in American Folklore Studies’, (1984) 21 Journal of Folklore Research 104. See also David Berliner, ‘Anthropologie et transmission’, (2010) 55 Terrain – Anthropologie et sciences humaines 4-19. 150 Olivier Morin is representative of this more recent line of research. He gives an extensive account of the state of the art in his book How Traditions Live and Die (n 31).

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recent work toward foundations in genetics and evolutionary biology, in order to gain better understanding of the processes at play in the impetus of transmission.151 Without going this far, it hardly needs saying that tradition only remains “traditional” as long as it has followers, or at least believers. All previous sections have already, sometimes indirectly, touched upon transmission processes. The purpose is not to explore them further nor to make in-depth inquiries into the research on transmission in other fields. But three brief remarks come to mind on mechanisms that, arguably, could be at play in the French international law tradition. The first is what is dominantly represented to be “success” in the profession. As shown in the previous section, there is a very tight enmeshment between international law scholarship and practice in France, an enmeshment that is perceived not only to be normal but, more crucially, to be desired and actively pursued. Quite simply put, professional success for international law scholars is when they have managed to set foot into international law practice. But while practice quite certainly helps financial success, it does not spontaneously appear why being both a scholar and a practitioner should equal professional accomplishment. Yet the fact is that it is perceived so in France. During a recent teaching experience at The Hague Academy, I was asked by a more senior academic if I had already appeared in a dispute before an international court. When I said no, he kindly answered that I shouldn’t worry, it would happen in due course. The certainty struck me as odd, and so I tentatively suggested I wasn’t so sure of my interest in practice. I realized at once that I had uttered an illegitimate doubt, for he (still kindly) teased me and said I should “have ambition.” Practice, apparently, is what characterizes successful international law scholars. A contrario, are “just scholars” scholars who have failed? Furthermore, this dominant model of professional success also nurtures another facet of the French tradition of international law. If the reader recalls the scholars presented in Sect. 6, they will remember that many of them where described as being realistic and pragmatic positivists, who drew much of their vision of international law from their experience with practice. This, in fact, is another tenet of the traditional French approach of international law: intertwining theory and practice in scholarship. This is maybe best expressed in the words of Combacau, who wrote in his homage to Reuter that “for Paul Reuter, practice could not merely be the complement to his scholarly work; it was its very precondition. If law is an art before being a science, then no one can claim to achieve it, and even less claim to contribute to its diffusion, if they haven’t first mastered it; describing legal objects presupposes experience with the practical skills that have crafted them, and the theory of Paul Reuter (. . .) is a theory of practice.”152 “Theory of practice” has become almost a slogan that French international lawyers live and think by or strive to live by. Theory of practice is, of course, admissible. But we simply cannot adhere to the notion that it is the only “true” kind of theory. In fact, it conveys the massively biased impression

Pascal Boyer, Minds Make Societies – How Cognition Explains the World We Create (New Haven: Yale University Press 2018). 152 Jean Combacau, ‘Paul Reuter, le juriste’ (n 75) X-XI. 151

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that any theory that is not grounded in practice is remote from reality, for the underlying assumption is that practice is the only means for being in touch with reality; conversely, it elevates theoretical approaches of practitioners to the highest levels of credibility. Theorizing practical experience ends up becoming a distorted version of intellectualism, while conversely intellectual projects per se will lightly be mocked or ignored. More crucially, what this passion for practice and the celebration of scholars’ experience with international practice utterly conceals is that the scholar’s work and the practitioner’s work are two entirely different lines of business. Practice involves altogether different ways of approaching international law, which are constrained by instructions by clients and any number of political, economic, and social considerations that will limit the scope of options and set clear parameters for action. The genuine intellectual work is free of such constraints, or at least could be, although we are all at least somewhat culturally constrained by tradition or education, as this entire paper aims at demonstrating. Submitting that intellectual endeavors are only truly accomplished when they are grounded in practice thus seems to be a rather restricted way of thinking about international law. On the other hand, it might also explain the strong foothold of the positivist tradition in French scholarship and why a century later the theoretical framework is still dominated by the two main currents of positivism, which are repeated generation after generation to students of international law—the voluntarist and the objectivist approach—to such an extent that most French students have never even heard of different approaches than these. In this tight enmeshment of practice and theory, and the resulting scholarly output, it is hard not to see the shadow of what Bourdieu provocatively calls “State science.”153 However, to those who remain skeptical and maintain that power and vested interests play no role in our scholarly international law tradition, I simply refer them to a paper by Lacharrière published in 1968, revealingly titled “Teaching and Research in International Law in France: What the Administration Needs.”154 The second remark, along the lines of transmission processes of tradition, touches upon our institutional rites of passage. Many French institutional rites—of which in particular academia (all over the world) knows plenty—are in fact themselves traditions, at the same time as they play a crucial role in preserving other substantial and more deeply engrained traditions. Bourdieu would bluntly call such initiation rites “consecration acts,”155 thereby meaning that they determine whether an

153

Pierre Bourdieu, Sociologie générale vol. 2 (n 130) 742-744. Guy de Lacharrière, ‘Enseignement et recherche en matière de droit international: les besoins de l’administration’ in L’enseignement et la recherche en droit international en France face aux besoins de la pratique (Paris: Dalloz 1968). Incidentally, these are the proceedings of a 1967 workshop in Strasbourg entirely dedicated to the problems of international law teachings and research with regard to practice, which, in its immediate aftermath, brought about the creation of the French Society. 155 Pierre Bourdieu, Sociologie générale vol. 1 (n 9) 122-125. See also his ‘Les rites comme actes d’institution’, (1982) 43 Actes de la recherche en sciences sociales 58-63. 154

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individual is deemed worthy of being granted access to the community or not. This powerful expression alone should make us wonder about the implicit yet very real rules of tradition we abide by when passing any number of such rites. They are manifold and lodged in the most trivial of events to the most solemn ones: exams and the formal constraints that French law students are trained to abide by when they write an essay; the constraints that PhD candidates abide by according to traditional academic expectations; the PhD defense in itself, which is still solemnly ritualized in France; the constraints that scholars abide by when they try to get a paper or book published; when they apply for an academic position; when they pass the ultimate “consecration act” in French legal academia that literally (and legally) constitutes professors of law, the “agrégation”; when they later hope and try to get “poached” by one of the most prestigious universities; etc. The list could go on, but the point to make regarding all of these rites of passage and none in particular is that, once again, power structures and tradition interact. Many of the constraints we follow during such ritualized initiation processes are reproductions of tradition. They are abided by less because of genuine adherence and much more because of a conviction, right or wrong, that the institution expects them and that not reproducing them would lead to exclusion. The third and last remark concerns teaching, for it is undoubtedly through the teachings of international law that we have most been infused with our national tradition, which we quite likely later contribute to transmitting to our own students. Evidently, teaching is capable of imprinting a specific vision of international law on students. All human institutions are empowering, to the extent that they are “enabling structures,”156 and this is as true for academia as for any other institution. That international law teachers wield such power can easily be inferred from the important number of conferences and workshops, with an important revival in recent times, devoted to the teaching of international law. We might be squeamish about acknowledging that we exert power through teaching, and some scholars, Searle, for instance, argue that an element of intentionality is required to qualify the exercise of power.157 Consequently, he distinguishes exerting unintentional influence from exerting power. I find this argument quite unconvincing. Influence, whether intentional or not, is nothing but a subspecies of power—such distinguishing tastes of self-justification, and we cannot convincingly tell ourselves that our teaching and “unintentional” influence on students by what we say and how we say it does not equal exerting a form of power. That students are unaware of this does not change the brute fact. This might be quite an uncomfortable realization, but it would be much more disturbing to deny it and would equally be gravely irresponsible. This is a typical variation of what Foucault calls “bio-power,” which continuously and pervasively runs through any social group and most of all remains anonymous or at least tries to be. All types of standardizing practices to which members of a group are more or less consciously subjected are the essential fuel of such power. The

156 157

See John R. Searle, Making the Social World (n 120) 105. Ibid., 150.

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transmission we as teachers engage in when teaching, including the transmission of the tradition we are a part of, is as much a form of power as any more brute exercise of power. Hiding behind its anonymity by claiming that what we do is supposedly neutral, objective, Kelsenianly pure, in short “scientific,” is a weak defense and merely emphasizes the covertness of our influence. Students from my beginners’ course in international law recently confessed to me that they were now “confused” as I had just mentioned CLS and social idealism in class, of which they had never heard before. More revealingly, they asked me if there were more theories of international law than these and, if yes, how they were “expected to choose.” The questions were asked so candidly that they were endearing, but they also scared me. It had never occurred to me just how much “power” I had. I had naively thought that power lies in authoritative answers and views imposed on others, when it can be expected that those others will adopt the same views for any number of reasons, including because they fear sanction if they do not. This facet of power is easily understandable as “anybody can exercise power over anybody” when they are in a position where they have the “capacity for imposing informal sanctions against those who violate the norms.”158 How students learn for exams in the French system of legal education and how they will answer exams based on what they think is expected of them is a typical illustration. We need to at least acknowledge the responsibility we bear toward those who depend on us, for any type of power drags in its wake responsibility—or at least should. And so, if my students’ question scared me, it is because it revealed that our power as teachers can be much more slippery, covert, and subtle. Even when we do not impose authoritative views on them but present them with theoretical options, even when we do not narrow their vision of international law but, on the contrary, strive to broaden it, there is still a discreet albeit sane form of power at play, most devastating: the power to deprive them of what felt safe and secure, in short, to strip them of their certainties. Certainties are reassuring. Safety is . . . safe. Being presented with alternative visions of international law is as disturbing as looking at the Gall-Peters projection or a South-up map, when we are used to being certain that the world is as we believe it to be, for we have always only known the Mercator projection. If we end up preferring Mercator, be that as it may, but at least we should be aware that science has offered other possible projections and that their inaccuracies are not worse than the inaccuracy of the Mercator projection. In this very order of ideas, there is a course called “Ignorance” taught at Columbia University. Just the course title, as forbidden as it sounds, is enchanting. Stuart Firestein, who later published a book called Ignorance—How It Drives Science,159 came up with the idea of such unorthodox course when he realized the main shortcoming of teaching: we try to teach students all that we know and think but never what we don’t know. By our very profession and the position we hold, we are not used to saying “I don’t know” and engaging in a discussion about that which we 158 159

Ibid., 159. Stuart Firestein, Ignorance – How It Drives Science (New York: OUP 2012).

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don’t know. “[The] crucial element in science, Firestein writes, [is] being left out for the students. The undone part of science (. . .), the very driving force of science, the exhilaration of the unknown, all this is missing from our classrooms. In short, we are failing to teach the ignorance, the most critical part of the whole operation.”160 While Firestein is a professor of neuroscience, the same can easily be said about legal education. Lawyers, in general, are not in the business of uncertainty and ignorance. But I wonder how much of tradition would actually still be “traditional,” and traditionally transmitted in our teachings, if once in a while we engaged with our ignorance.

10

Concluding Remarks

At the end of this inquiry into tradition, from various angles, no conclusion will be provided regarding the French tradition of international law. Rather, one last observation should be made as it is common to all approaches in all disciplinary fields engaging with tradition. Indeed, quite strikingly, none of them claim to provide a justification for the (supposedly objective) legitimacy of tradition. Weil makes this point particularly strongly when he writes that “tradition is a value in itself, the value that grounds all other values.”161 As a result, he argues that the inherent paradox of the very concept of tradition is that tradition is weak where it is most actively discussed and inversely strong where it is unspoken of and even unthinkable to be spoken of.162 The same point is made by Claude Lévi-Strauss when he sheds a crude light on the sterile justification of tradition (in short, “our elders have taught us so. . .”). He suggests that seniority and continuity are the sole foundations of tradition’s legitimacy.163 Although Bourdieu does not engage with tradition in itself, he nevertheless touches upon the same emptiness of justification in his thoughts on traditionalism. He argues that the order instituted by traditionalism is viable only as long as it is perceived to be the only possible order. In fact, he submits that competing perceptions and practices constitute “the worst threat” to traditionalism because they would destroy the illusion that tradition, believed to be unalterable and necessary, is the only possibility. He subtly concludes that “it is a matter of survival for traditionalism to be unaware of itself as such, that is, as a choice that is unaware that it is a choice.”164 Gabriel Gosselin, for his part, seems to be deeply influenced by See . Eric Weil, ‘Tradition et traditionalisme’ (n 18) 12-14. 162 Ibid. 163 Claude Lévi-Strauss, La pensée sauvage (Paris: Plon 1962, new edition Paris: Pocket 1990) 312-331. 164 Pierre Bourdieu, ‘La société traditionnelle – Attitude à l’égard du temps et conduite économique’, (1963) 5 Sociologie du Travail 42. This should be understood on the background of his distinction between ethos and attitudes, see for instance Pierre Bourdieu, Le désenchantement du monde – Travail et travailleurs en Algérie (Paris: Mouton & Cie 1966). For a similar argument 160 161

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the writings of Weil and less by those of Bourdieu but makes exactly the same point. Tradition, he argues, is “the concept of culture posing as nature.”165 Such an idea is deeply unsettling, at least, if we genuinely engage with the meaning of nature and dare inquire into how much of our international lawyer’s nature might be not so natural after all. But Paul Ricoeur manages to shed a hopeful light on such observations, and his words on tradition should conclude this inquiry. Tradition is typically presented in dyadic form with innovation or change. Ricoeur suggests that there could also be another promising avenue to explore. The one thing we should strive to deliver from the heritage of the past, he argues, are the unfulfilled promises of the past. He makes the powerful point that the people from our past, including our disciplinary past, all had a future; from our perspective, we could call it the future of the past, which, to us, is just plainly the past. But Ricoeur reminds us that this future has largely remained unfulfilled. And he entrusts us with the idea that, just maybe, “the unfulfilled future of the past might be the most valuable part of tradition.”166

References Alland (D.), ‘Quelques réflexions sur la notion de politique juridique de l’État – Retour sur La politique juridique extérieure’, (2012) XIII Annuaire français de relations internationales 555-563 Aloupi (N.), ‘Gilbert Gidel’, at . Aubanel Le Rhun (L.), ‘Louis Cavaré’, at . Austin (J.L.), Sense and Sensibilia (Oxford: OUP 1962a) Austin (J.L.), How To Do Things With Words (Oxford: Clarendon Press 1962b) Balandier (G.), Tradition et modernité: Problèmes théoriques – Illustrations africaines (polycopié, Paris 1966-1967) Balandier (G.), Anthropologie politique (Paris: Presses universitaires de France 1967, reprint 2013) Bardonnet (D.), ‘In Memoriam: Le Professeur Michel Virally (1922-1989)’, (1988) 34 AFDI 7-12 Barthes (R.), Le bruissement de la langue – Essais critiques IV (Paris: Seuil 1984) Barthes (R.), Mythologies (Paris: Seuil 1957, new edition Paris: Points 2014) Basdevant (J.), ‘Règles générales du droit de la Paix’ (1936) 58 Hague Academy of International Law Collected Courses 471-715 Basdevant (J.), ‘La conclusion et la rédaction des traités et des actes diplomatiques autres que les traités’, (1926) 15 Hague Academy of International Law Collected Courses 535-667 Bastid (S.), Les traités dans la vie internationale: conclusion et effets (Paris: Economica 1985)

see John R. Searle, who articulates this in terms of power: he argues that power is subtly yet forcefully exerted when our background shapes our desires or determines and thus limits our “perception of the available options”, in Making the Social World (n 120) 160. 165 Gabriel Gosselin, ‘Tradition et traditionalisme’, (1975) 16 Revue française de sociologie 218. 166 Paul Ricoeur, ‘Quel ethos nouveau pour l’Europe?’ in Peter Koslowski (ed.), Imaginer l’Europe – Le marché intérieur européen, tâche culturelle et économique (Paris: Cerf 1992) 112. See also ‘Identité narrative et communauté historique’, (1994) Cahier de Politique Autrement (special issue October 1994, reprint 2016).

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